CASE 
•      * 


^jL^t^ 


THE 


JUDICIAL  MURDER 


—  OF  — 


MARY  E.  SURRATT 


DAVID  MILLER  DsWITT. 


BALTIMORE: 

JOHN    MURPHY    &    CO. 

1895. 


5 


COPYRIGHT,  1894,  BY  DAVID  MILLER  DEWITT. 


"  Oceans  of  horse-hair,  continents  of  parchment, 
and  learned-sergeant  eloquence,  were  it  continued  till 
the  learned  tongue  wore  itself  small  in  the  indefatiga 
ble  learned  mouth,  cannot  make  the  unjust  just.  The 
grand  question  still  remains,  Was  the  judgment  just  ? 
If  unjust,  it  will  not  and  cannot  get  harbour  for  itself, 
or  continue  to  have  footing  in  this  Universe,  which 
was  made  by  other  than  One  Unjust.  Enforce  it  by 
never  such  statuting,  three  readings,  royal  assents; 
blow  it  to  the  four  winds  ivith  all  manner  of  quilted 
trumpeters  and  pursuivants,  in  the  rear  of  them  never 
so  many  gibbets  and  hangmen,  it  will  not  stand,  it 
cannot  stand.  From  all  souls  of  men,  from  all  ends 
of  Nature,  from  the  Throne  of  God  above,  there  are 
voices  bidding  it :  Away  I  Away  !  " 

PAST  AND  PRESENT. 


M143985 


CONTENTS. 


PRELIMINARY. 

CHAPTER  I. 

PAGE. 

The  Reign  of  Terror,  -        1 

CHAPTER  II. 
The  Bureau  of  Military  (In)  Justice,  15 


PART  I. 
THE     MURDER. 

CHAPTER  I. 
The  Opening  of  the  Court.     Was  She  Ironed  ?        -        -      23 

CHAPTER  II. 

Animus  of  the  Judges.    Insults  to  Eeverdy  Johnson  and 

General  Edward  Johnson,  -       41 

CHAPTER  III. 
Conduct  of  the  Trial,  .....      56 

CHAPTER  IV. 
Arguments  of  the  Defense, 70 

CHAPTER  V. 
Charge  of  Judge  Bingham, 82 


VI  CONTENTS. 

CHAPTER  VI. 

PAGE 

Verdict,  Sentence  and  Petition,        -  -      91 

CHAPTER  VII. 
The  Death  Warrant  and  Execution,  112 

CHAPTER  VIII. 
Was  it  not  Murder  ?     The  Milligan  Case,         -        -        -    126 


PART  II. 
THE     VINDICATION, 

CHAPTER  I. 
Setting  Aside  the  Verdict.     Discharge  of  Jefferson  Davis,     145 

CHAPTER  II. 
Reversal  on  the  Merits.    Trial  of  John  H.  Surratt,  165 

CHAPTER  III. 
The  Recommendation  to  Mercy,      -  182 

CHAPTER  IV. 
Trial  of  Joseph  Holt,  207 

CHAPTER  V. 
Andrew  Johnson  Signs  another  Death  Warrant,  236 

CHAPTER  VI. 
Conclusion,      -  -----    249 


PRELIMINARY. 


CHAPTER   I. 
THE  REIGN  OF  TERROR. 

THE  assassination  of  Abraham  Lincoln  burst 
upon  the  City  of  Washington  like  a  black 
thunder-bolt  out  of  a  cloudless  sky.  On  Monday, 
the  3d  of  April,  1865,  Richmond  was  taken.  On 
the  succeeding  Sunday  (the  ninth),  General  Lee  with 
the  main  Army  of  the  South  surrendered.  The  re 
bellion  of  nearly  one-half  the  nation  lay  in  its  death- 
throes.  The  desperate  struggle  for  ijie  unity  of  the 
Republic  was  ending  in  a  perfect  triumph ;  and  the 
loyal  people  gave  full  rein  to  their  joy.  Every  night 
the  streets  of  the  city  were  illuminated.  The  chief 
officers  of  the  government,  one  after  another,  were 
serenaded.  On  the  evening  of  Tuesday,  the  eleventh, 
the  President  addressed  his  congratulations  to  an 
enthusiastic  multitude  from  a  window  of  the  White 
House.  On  the  night  of  Thursday  (the  thirteenth) 
Edwin  M.  Stanton,  the  Secretary  of  War,  and 
Ulysses  S.  Grant,  the  victorious  General  of  the  Army 

1 


2  MARY   E.    SURRATT. 

of  the  North,  were  tumultuously  greeted  with  ban 
ners  and  music  and  cannon  at  the  residence  of  the 
Secretary.  The  next  day,  Friday  the  14th,  was  the 
fourth  anniversary  of  the  surrender  of  Fort  Sumter 
to  the  South,  and  that  national  humiliation  was  to  be 
avenged  by  the  restoration  of  the  flag  of  the  United 
States  to  its  proper  place  above  the  fort  by  the  hand 
of  the  same  gallant  officer  who  had  been  compelled 
to  pull  it  down.  In  the  evening,  a  torch-light 
procession  perambulated  the  streets  of  the  Federal 
Capital.  Enthusiastic  throngs  filled  the  theatres, 
where  the  presence  of  great  officials  had  been  adver 
tised  by  huge  placards,  and  whose  walls  were  every 
where  festooned  with  the  American  flag.  After  four 
years  of  agonizing  but  unabating  strain,  all  patriots 
felt  justified  in  yielding  to  the  full  enjoyment  of  the 
glorious  relaxation. 

Suddenly,  at  its  very  zenith,  the  snap  of  a  pistol 
dislimns  and  scatters  this  great  jubilee,  as  though 
it  were,  indeed^the  insubstantial  fabric  of  a  vision. 
At  half  past  ten  that  night,  from  the  box  of  the 
theatre  where  the  President  is  seated,  a  shot  is  heard  ; 
a  wild  figure,  hatless  and  clutching  a  gleaming  knife, 
emerges  through  the  smoke;  it  leaps  from  the  box 
to  the  stage,  falls  upon  one  knee,  recovers  itself, 
utters  one  shout  and  waves  aloft  its  bloody  weapon  ; 
then  turns,  limps  across  in  front  of  the  audience 
and  disappears  like  a  phantom  behind  the  scenes. 
Simultaneously,  there  breaks  upon  the  startled  air 
the  shriek  of  a  woman,  followed  close  by  confused 


PRELIMINARY.  3 

cries  of  "  Water  !  Water  ! "  and  "  The  President 
is  shot!" 

For  the  first  few  moments  both  audience  and  actors 
are  paralyzed.  One  man  alone  jumps  from  the  audi 
torium  to  the  stage  and  pursues  the  flying  apparition. 
But,  as  soon  as  the  hopeless  condition  of  the  Presi 
dent  and  the  escape  of  the  assassin  begin  to  transpire, 
angry  murmurs  of  "  Burn  the  Theatre  ! "  are  heard 
in  the  house,  and  soon  swell  into  a  roar  in  the  street 
where  a  huge  crowd  has  already  assembled. 

The  intermingling  throng  surges  into  the  building 
from  every  quarter,  and  mounts  guard  at  every  exit. 
Not  one  of  the  company  of  actors  is  allowed  to  go 
out.  The  people  seem  to  pause  for  a  moment,  as  if 
awaiting  from  Heaven  a  retribution  as  sudden  and 
awful  as  the  crime. 

All  their  joy  is  turned  to  grief  in  the  twinkling  of 
an  eye.  The  rebellion  they  had  too  easily  believed 
to  be  dead  could  still  strike,  it  seemed,  a  fatal  blow 
against  the  very  life  of  the  Republic.  '  A  panic  seizes 
the  multitude  in  and  around  the  theatre,  and  from 
the  theatre  spreads,  "  like  the  Night,"  over  the  whole 
city.  And  when  the  frightened  citizens  hear,  as  they 
immediately  do,  the  story  of  the  bloody  massacre  in 
the  house  of  the  Secretary  of  State,  occurring  at 
the  same  hour  with  the  murder  of  the  President, 
the  panic  swells  into  a  reign  of  terror.  The  wildest 
stories  find  the  quickest  and  most  eager  credence. 
Every  member  of  the  Cabinet  and  the  General  of 
the  Army  have  been,  or  are  about  to  be,  killed; 


4  MARY   E.    SURRATT. 

the  government  itself  is  at  a  standstill;  and  the 
lately  discomfited  rebels  are  soon  to  be  in  possession 
of  the  Capital.  Patriotic  people,  delivering  them 
selves  over  to  a  fear  of  they  know  not  what,  cry 
hoarsely  for  vengeance  on  they  know  not  whom. 
The  citizen  upon  whose  past  loyalty  the  slightest 
suspicion  can  be  cast  cowers  for  safety  close  to  his 
hearth-stone.  The  terror-stricken  multitude  want 
but  a  leader  cool  and  unscrupulous  enough,  to 
plunge  into  a  promiscuous  slaughter,  such  as  stained 
the  new-born  revolution  in  France.  A  leader, 
indeed,  they  soon  find,  but  he  is  not  a  Dan  ton.  He 
is  a  leader  only  in  the  sense  that  he  has  caught  the 
same  madness  of  terror  and  suspicion  which  has 
seized  the  people,  that  he  holds  high  place,  and  that 
he  has  the  power  and  is  in  a  fit  humor  to  pander  to 
the  panic. 

Edwin  M.  Stanton  was  forced  by  the  tremendous 
crisis  up  to  the  very  top  of  affairs.  Vice-President 
Johnson,  in  the  harrowing  novelty  of  his  position, 
was  for  the  time  being  awed  into  passive  docility. 
The  Secretary  of  State  was  doubly  disabled,  if  not 
killed.  The  General  of  the  Army  was  absent. 
The  Secretary  of  War  without  hesitation  grasped 
the  helm  thus  thrust  into  his  hand,  but,  alas  !  he 
immediately  lost  his  head.  His  exasperation  at  the 
irony  of  fate,  which  could  so  ruthlessly  and  in  a 
moment  wither  the  triumph  of  a  great  cause  by  so . 
unexpected  and  overwhelming  a  calamity,  was  so 
profound  and  intense,  his  desire  for  immediate  and 


PRELIMINARY.  O 

commensurate  vengeance  was  so  uncontrollable  and 
unreasoning,  as  to  distort  his  perception,  unsettle  his 
judgment,  and  thus  cause  him  to  form  an  estimate 
of  the  nature  and  extent  of  the  impending  danger 
as  false  and  exaggerated  as  that  of  the  most  panic- 
stricken  wretch  in  the  streets.  Personally,  besides, 
he  was  unfitted  in  many  respects  for  such  an  emer 
gency.  Though  an  able  and,  it  may  be,  a  great 
War-Minister,  he  exerted  no  control  over  his  temper ; 
he  habitually  identified  a  conciliatory  and  charitable 
disposition  with  active  disloyalty ;  and,  being  un 
popular  with  the  people  of  Washington  by  reason 
of  the  gruffness  of  his  ways  and  the  inconsistencies 
of  his  past  political  career,  he  had  reached  the  unal 
terable  conviction  that  the  Capital  was  a  nest  of 
sympathizers  with  the  South,  and  that  he  was  sur 
rounded  by  enemies  of  himself  and  his  country. 

When,  therefore,  upon  the  crushing  news  that  the 
President  was  slain,,  followed  hard  the  announce 
ment  that  another  assassin  had  made  a  slaughter 
house  of  the  residence  of  the  Minister's  own  colleague, 
self-possession — the  one  supreme  quality  which  was 
indispensable  to  a  leader  at  such  an  awful  juncture — 
forsook  him  and  fled. 

Before  the  breath  was  out  of  the  body  of  the 
President,  the  Secretary  had  rushed  to  the  conclusion, 
unsupported  as  yet  by  a  shadow  of  testimony,  that 
the  acts  of  Booth  and  of  the  assailant  of  Seward 
(at  the  moment  supposed  to  be  John  H.  Surratt) 
were  the  outcome  of  a  widespread,  numerous  and 


6  MARY   E.   SURRATT. 

powerful  conspiracy  to  kill,  not  only  the  President 
and  the  Secretary  of  State,  but  all  the  other  heads  of 
the  Departments,  the  Vice- President  and  the  General 
of  the  Army  as  well,  and  thus  bring  the  government 
to  an  end ;  and  that  the  primary  moving  power  of 
the  conspiracy  was  the  defunct  rebellion  as  repre 
sented  by  its  titular  President  and  his  Cabinet,  and 
its  agents  in  Canada.  This  belief,  embraced  with 
so  much  precipitation,  immediately  became  more 
than  a  "belief;  it  became  a  fixed  idea  in  his  mind. 
He  saw,  heard,  felt  and  cherished  every  thing  that 
favored  it.  He  would  see  nothing,  would  hear 
nothing,  and  hated  every  thing,  that  in  the  slightest 
degree  militated  against  it.  Upon  this  theory  he 
began,  and  upon  this  theory  he  prosecuted  to  the  end, 
every  effort  for  the  discovery,  arrest,  trial  and  pun 
ishment  of  the  murderers. 

He  was  seconded  by  a  lieutenant  well-fitted  for 
such  a  purpose — General  Lafayette  C.  Baker,  Chief 
of  the  Detective  Force.  In  one  of  the  two  minority 
reports  presented  to  the  House  of  Representatives 
by  the  Judiciary  Committee,  on  the  Impeachment 
Investigation  of  1867,  this  man  and  his  methods 
are  thus  delineated  : 

"  The  first  witness  examined  was  General  Lafayette  C.  Baker, 
late  chief  of  the  detective  police,  and  although  examined  on 
oath,  time  and  again,  and  on  various  occasions,  it  is  doubtful 
whether  he  has  in  any  one  thing  told  the  truth,  even  by 
accident.  In  every  important  statement  he  is  contradicted  by 
witnesses  of  unquestioned  credibility.  And  there  can  be  no 
doubt  that  to  his  many  previous  outrages,  entitling  him  to  an 


PRELIMINARY.  I 

unenviable  immortality,  he  has  added  that  of  wilful  and  delib 
erate  perjury ;  and  we  are  glad  to  know  that  no  one  member  of 
the  committee  deems  any  statement  made  by  him  as  worthy  of 
the  slightest  credit.  What  a  blush  of  shame  will  tinge  the 
cheek  of  the  American  student  in  future  ages,  when  he  reads 
that  this  miserable  wretch  for  years  held,  as  it  were,  in  the 
hollow  of  his  hand,  the  liberties  of  the  American  people.  That, 
clothed  with  power  by  a  reckless  administration,  and  with  his 
hordes  of  unprincipled  tools  and  spies  permeating  the  land 
everywhere,  with  uncounted  thousands  of  the  people's  money 
placed  in  his  hands  for  his  vile  purposes,  this  creature  not  only 
had  power  to  arrest  without  crime  or  writ,  and  imprison  without 
limit,  any  citizen  of  the  republic,  but  that  he  actually  did  so 
arrest  thousands,  all  over  the  land,  and  filled  the  prisons  of  the 
country  with  the  victims  of  his  malice,  or  that  of  his  masters." 

Iii  this  man's  hands  Secretary  Stanton  placed  all 
the  resources  of  the  War  Department,  in  soldiers, 
detectives,  material  and  money,  and  commanded  him 
to  push  ahead  and  apprehend  all  persons  suspected 
of  complicity  in  the  assumed  conspiracy,  and  to  con 
duct  an  investigation  as  to  the  origin  and  progress 
of  the  crime,  upon  the  theory  he  had  adopted  and 
which,  as  much  as  any  other,  Baker  was  perfectly 
willing  to  accept  and  then,  by  his  peculiar  methods, 
establish.  Forthwith  was  ushered  in  the  grand  car 
nival  of  detectives.  Far  and  wide  they  sped.  They 
had  orders  from  Baker  to  do  two  things : 

I. — To  arrest  all  the  "  Suspect."  II. — By  prom 
ises,  rewards,  threats,  deceit,  force,  or  any  other 
effectual  means,  to  extort  confessions  and  procure 
testimony  to  establish  the  conspiracy  whose  existence 
had  been  postulated. 


8  MARY   E.   SURE  ATT. 

At  two  o'clock  in  the  morning  of  Saturday,  the 
fifteenth,  they  burst  into  the  house  of  Mrs.  Surra tt 
and  displaying  the  bloody  collar  of  the  coat  of  the 
dying  Lincoln,  demanded  the  whereabouts  of  Booth 
and  Surratt.  It  being  presently  discovered  that 
Booth  had  escaped  on  horseback  across  the  Navy 
Yard  Bridge  with  David  Herold  ten  minutes  in  his 
rear,  a  dash  was  made  upon  the  livery-stables  of 
Washington,  their  proprietors  taken  into  custody, 
and  then  the  whole  of  lower  Maryland  was  invaded, 
the  soldiers  declaring  martial  law  as  they  progressed. 
Ford's  theatre  was  taken  and  held  by  an  armed 
force,  and  the  proprietor  and  employees  were  all 
swept  into  prison,  including  Edward  Spaugler,  a 
scene-shifter,  who  had  been  a  menial  attendant  of 
Booth's.  The  superstitious  notion  prevailed  that 
the  inanimate  edifice  whose  walls  had  suffered  such 
a  desecration  was  in  some  vague  sense  an  accomplice  ; 
the  Secretary  swore  that  no  dramatic  performance 
should  ever  take  place  there  again ;  and  the  suspicion 
was  sedulously  kept  alive  that  the  manager  and  the 
whole  force  of  the  company  must  have  aided  their 
favorite  actor,  or  the  crime  could  not  have  been  so 
easily  perpetrated  and  the  assassin  escaped. 

On  the  night  of  the  fifteenth  (Saturday)  a  locked 
room  in  the  Kirkwood  House,  where  Vice  President 
Johnson  was  stopping,  which  had  been  engaged  by 
George  A.  Atzerodt  on  the  morning  of  the  four 
teenth,  was  broken  open,  and  in  the  bed  were  found 
a  bowie-knife  and  a  revolver,  and  on  the  wall  a  coat 


PRELIMINARY.  9 

(subsequently  identified  as  Herold's),  in  which  was 
found,  among  other  articles,  a  bank  book  of  Booth's. 
The  room  had  not  been  otherwise  occupied — Atze- 
rodt,  after  taking  possession  of  it,  having  mysteri 
ously  disappeared. 

On  the  morning  of  the  seventeeth  (Monday),  at 
Baltimore,  Michael  O'Laughlin  was  arrested  as  a 
friend  of  Booth's,  and  it  was  soon  thought  that  he 
"resembled  extremely"  a  certain  suspicious  stranger 
who,  it  was  remembered,  had  been  seen  prowling 
about  Secretary  Stanton's  residence  on  the  night  of 
the  13th,  when  the  serenade  took  place,  and  there 
doing  such  an  unusual  act  as  inquiring  for,  and 
looking  at,  General  Grant. 

On  the  same  day  at  Fort  Monroe,  Samuel  Arnold 
was  arrested,  whose  letter  signed  "  Sam  "  had  been 
found  on  Saturday  night  among  the  effects  of  Booth. 

On  the  night  of  the  seventeenth,  also,  the  house 
of  Mrs.  Surratt  with  all  its  contents  was  taken  pos 
session  of  by  the  soldiers,  and  Mrs.  Surratt,  her 
daughter,  and  all  the  other  inmates  were  taken  into 
custody.  While  the  ladies  were  making  prepara 
tions  for  their  departure  to  prison,  a  man  disguised 
as  a  laborer,  with  a  sleeve  of  his  knit  undershirt 
drawn  over  his  head,  a  pick-axe  on  his  shoulder, 
and  covered  with  mud,  came  to  the  door  with  the 
story  that  he  was  to  dig  a  drain  for  Mrs.  Surratt  in 
the  morning;  and  that  lady  asseverating  that  she 
had  never  seen  the  man  before,  he  was  swept  with 
the  rest  to  headquarters,  and  there,  to  the  astonish- 


10  MAEY   E.    SUKRATT. 

ment  of  everybody,  turned  out  to  be  the  desperate 
assailant  of  the  Sewards. 

During  these  few  days  Washington  was  like  a 
city  of  the  dead.  The  streets  were  hung  with  crape. 
The  obsequies,  which  started  on  its  march  across  the 
continent  the  colossal  funeral  procession  in  which 
the  whole  people  were  mourners,  were  being  cele 
brated  with  the  most  solemn  pomp.  No  business 
was  done  except  at  Military  Headquarters.  Men 
hardly  dared  talk  of  the  calamity  of  the  nation. 
Everywhere  soldiers  and  police  were  on  the  alert  to 
seize  any  supposed  or  denounced  sympathizer  with 
the  South.  Mysterious  and  prophetic  papers  turned 
up  at  the  White  House  and  the  War  Department. 
Women  whispered  terrible  stories  of  what  they  knew 
about  the  "  Great  Crime."  To  be  able  to  give  evi 
dence  was  to  be  envied  as  a  hero. 

And  still  the  arch-devil  of  the  plot  could  not  be 
found  ! 

The  lower  parts  of  Maryland  seethed  like  a  boiling 
pot,  and  the  prisons  of  Washington  were  choking 
with  the  "  suspect "  from  that  quarter.  Lloyd — the 
drunken  landlord  of  the  tavern  at  Surrattsville,  ten 
miles  from  Washington,  at  which  Booth  and  Herold 
had  stopped  at  midnight  of  the  fatal  Friday  for 
carbines  and  whisky — after  two  days  of  stubborn 
denial  was  at  last  frightened  into  confession  ;  and 
Doctor  Mucld,  who  had  set  Booth's  leg  Saturday 
morning  thirty  miles  from  Washington,  was  in  close 
confinement.  All  the  intimate  friends  of  the  actor 


PRELIMINARY.  11 

in  Washington,  in  Baltimore,  in  Philadelphia,  in 
New  York  and  even  in  Montreal  were  in  the  clutches 
of  the  government.  Surratt  himself — the  pursuit 
of  whom,  guided  by  Weichman,  his  former  college- 
chuni,  his  room-mate,  and  the  favorite  guest  of  his 
mother,  had  been  instant  and  thorough — it  was 
ascertained,  had  left  Canada  on  the  12th  of  April 
and  was  back  again  on  the  18th. 

But  where  was  Booth  ?  where  Herold  ?  where 
Atzerodt  ? 

On  the  20th,  the  Secretary  of  War  applied  the 
proper  stimulus  by  issuing  a  proclamation  to  the 
following  effect : 

"$50,000  reward  will  be  paid  by  this  department  for  the 
apprehension  of  the  murderer  of  our  late  beloved  President. 

"$25.000  reward  for  the  apprehension  of  John  H.  Surratt, 
one  of  Booth's  accomplices. 

"$25,000  reward  for  the  apprehension  of  Herold,  another  of 
Booth's  accomplices. 

"  Liberal  rewards  will  be  paid  for  any  information  that  shall 
conduce  to  the  arrest  of  either  of  the  above-named  criminals  or 
their  accomplices. 

"  All  persons  harboring  or  secreting  the  said  persons,  or  either 
of  them,  or  aiding  or  assisting  in  their  concealment  or  escape, 
will  be  treated  as  accomplices  in  the  murder  of  the  President 
and  the  attempted  assassination  of  the  Secretary  of  State,  and 
shall  be  subject  to  trial  before  a  military  commission  and  the 
punishment  of  death." 

What  is  noteworthy  about  this  document  is  that 
Stanton  had  already  made  up  his  mind  as  to  the 
guilt  of  the  persons  named  as  accomplices  of  Booth  ; 
that  he  needed  only  their  arrest,  being  assured  of 


12  MAEY   E.    SURE  ATT. 

their  consequent  conviction  ;  and  that  he  had  already 
determined  that  their  trial  and  the  trial  of  all  per 
sons  connected  with  the  great  crime,  however  re 
motely,  should  be  had  before  a  military  tribunal, 
and  that  the  punishment  to  follow  conviction  should 
be  death. 

At  four  o'clock  in  the  morning  of  the  very  day 
this  proclamation  was  issued,  Atzerodt  was  appre 
hended  at  the  house  of  his  cousin  in  Montgomery 
County,  Md.,  about  twenty-two  miles  northward  of 
Washington,  by  a  detail  of  soldiers,  to  whom,  by 
the  way,  notwithstanding  the  arrest  preceded  the 
proclamation,  $25,000  reward  was  subsequently 
paid.  With  Atzerodt  his  cousin,  Richter,  was  taken 
also.  O'Laughlin,  Payne,  Arnold,  Atzerodt  and 
Richter,  as  they  were  severally  arrested,  were  put 
into  the  custody  of  the  Navy  Department  and  con 
fined  on  board  the  Monitor  Saugus,  which  on  the 
morning  of  Saturday,  when  the  President  died,  had 
been  ordered  to  swing  out  into  the  middle  of  the 
river  opposite  the  Navy  Yard,  prepared  to  receive 
at  any  hour,  day  or  night,  dead  or  alive,  the  arch- 
assassin.  Each  of  these  prisoners  was  loaded  with 
double  irons  and  kept  under  a  strong  guard.  On 
the  23d,  Atzerodt,  by  order  of  the  Secretary  of  War, 
was  transferred  to  the  Monitor  Montauk,  to  separate 
him  from  his  cousin,  and  Payne,  in  addition  to  his 
double  irons,  had  a  ball  and  chain  fastened  to  each 
ankle  by  the  direction  of  the  same  officer.  On  the 
next  day  Spangler,  who  had  hitherto  been  confined 


PRELIMINARY.  13 

in  the  Old  Capitol  Prison,  was  transferred  to  one 
of  the  Monitors  and  presumably  subjected  to  the 
same  treatment.  On  the  same  day  the  following 
order  was  issued  : 

11  The  Secretary  of  War  requests  that  the  prisoners  on  board 
iron-clads  belonging  to  this  department  for  better  security 
against  conversation  shall  have  a  canvass  bag  put  over  the 
head  of  each  and  tied  around  the  neck,  with  a  hole  for  proper 
breathing  and  eating,  but  not  seeing,  and  that  Payne  be  secured 
to  prevent  self-destruction." 

All  of  which  was  accordingly  done. 

And  still  no  Booth  !  It  seems  as  though  the 
Secretary  were  mad  enough  to  imagine  that  he  could 
wring  from  Providence  the  arrest  of  the  principal 
assassin  by  heaping  tortures  on  his  supposed  accom 
plices. 

At  length,  in  the  afternoon  of  the  26th — Wednes 
day,  the  second  week  after  the  assassination — Col. 
Conger  arrived  with  the  news  of  the  death  of  Booth 
and  the  capture  of  Herold  on  the  early  morning  of 
that  day ;  bringing  with  him  the  diary  and  other 
articles  found  on  the  person  of  Booth,  which  were 
delivered  to  Secretary  Stanton  at  his  private  resi 
dence.  In  the  dead  of  the  ensuing  night,  the  body 
of  Booth,  sewed  up  in  an  old  army  blanket,  arrived, 
attended  by  the  dog-like  Herold ;  and  the  living 
and  the  dead  were  immediately  transferred  to  the 
Montauk.  Herold  was  double  ironed,  balled  and 
chained  and  hooded.  The  body  of  Booth  was  iden 
tified  ;  an  autopsy  held ;  the  shattered  bone  of  his 


14  MARY   E.    STJRRATT. 

neck  taken  out  for  preservation  as  a  relic  (it  now 
hangs  from  the  ceiling  of  the  Medical  Museum  into 
which  Ford's  Theatre  was  converted,  or  did  before 
the  collapse)  ;  and  then,  with  the  utmost  secrecy  and 
with  all  the  mystery  which  could  be  fabricated,  under 
the  direction  of  Col.  Baker,  the  corpse  was  hurriedly 
taken  from  the  vessel  into  a  small  boat,  rowed  to 
the  Arsenal  grounds,  and  buried  in  a  grave  dug  in 
a  large  cellar-like  apartment  on  the  ground  floor  of 
the  Old  Penitentiary ;  the  door  was  locked,  the  key 
removed  and  delivered  into  the  hands  of  Secretary 
Stanton.  No  effort  was  spared  to  conceal  the  time, 
place  and  circumstances  of  the  burial.  False  stories 
were  set  afloat  by  Baker  in  furtherance  of  such  pur 
pose.  Stanton  seemed  to  fear  an  escape  or  rescue 
of  the  dead  man's  body ;  and  vowed  that  no  rebel 
or  no  rebel  sympathizer  should  have  a  chance  to 
glory  over  the  corpse,  or  a  fragment  of  the  corpse, 
of  the  murderer  of  Lincoln. 


CHAPTER  II. 
THE  BUREAU  OF  MILITARY  (IN)JUSTICE. 

A/¥  INGLING  with  the  varied  emotions  evoked 
_/  JL  by  the  capture  and  death  of  the  chief  crim 
inal  was  a  feeling  of  deepest  exasperation  that  the 
foul  assassin  should  after  all  have  eluded  the  igno 
minious  penalty  of  his  crime.  Thence  arose  a  savage 
disposition  on  the  part  of  the  governing  powers  to 
wreak  this  baffled  vengeance  first,  on  his  inanimate 
body ;  secondly,  on  the  lives  of  his  associates  held 
so  securely  in  such  close  custody ;  and  thirdly,  on 
all  those  in  high  places  who  might  be  presumed  to 
sympathize  with  his  deeds.  It  was  too  horrible  to 
imagine  that  the  ghost  of  the  martyred  Lincoln 
should  walk  unavenged.  So  stupendous  a  calamity 
must  of  necessity  be  the  outcome  of  as  stupendous 
a  conspiracy,  and  must  in  the  very  justice  of  things 
be  followed  by  as  stupendous  a  retribution.  A  sac 
rifice  must  be  offered  and  the  victims  must  be  forth 
coming.  To  employ  the  parallel  subsequently  drawn 
by  General  Ewing  on  the  trial  of  the  conspirators : 
On  the  funeral  pyre  of  Patroclus  must  be  immolated 
the  twelve  Trojan  captives.  They  were  sure  of 
Payne  and  of  Herold.  They  held  Arnold  and 

15 


16  MARY   E.    SURRATT. 

O'Laughlin  and  Atzerodt  and  Spangler  and  Doctor 
Mudd — all  the  supposed  satellites  of  Booth,  save 
one.  John  H.  Surratt  could  not  be  found.  Officers 
in  company  with  Wei ch man  and  Holahan,  boarders 
at  his  mother's  house,  who  in  the  terror  of  the 
moment  had  given  themselves  up  on  the  morning 
of  the  fifteenth,  traced  him  to  Canada,  as  has  already 
been  noticed,  but  had  there  lost  track  of  him.  They 
had  returned  disappointed ;  and  now  Weichman  and 
Holahan  were  in  solitary  confinement.  Notwith 
standing  the  large  rewards  out  for  his  capture,  as  to 
him  alone  the  all-powerful  government  seemed  to 
be  baffled.  One  consolation  there  was,  however — 
if  they  could  not  find  the  son,  they  held  the  mother 
as  a  hostage  for  him,  and  they  clung  to  the  cruel 
expectation  that  by  putting  her  to  the  torture  of  a 
trial  and  a  sentence,  they  might  force  the  son  from 
his  hiding  place. 

In  the  meanwhile  the  Bureau  of  Military  Justice, 
presided  over  by  Judge- Advocate-General  Holt,  had 
been  unceasingly  at 'work.  General  Baker  with  his 
posse  of  soldiers  and  detectives  scoured  the  country 
far  and  wide  for  suspected  persons  and  witnesses, 
hauled  them  to  Washington  and  shut  them  up  in 
the  prisons.  Then  the  Bureau  of  Military  Justice 
took  them  in  hand,  and,  when  necessary,  by  promises, 
hopes  of  reward  and  threats  of  punishment,  squeezed 
out  of  them  the  testimony  they  wanted.  Colonel 
Henry  L.  Burnett,  who  had  become  an  expert  in 
such  proceedings  from  having  recently  conducted 


PRELIMINARY.  1 7 

the  trial  of  Milligan  before  a  military  tribunal  at 
Indianapolis,  was  brought  on  to  help  Judge  Holt  in 
the  great  and  good  work.  In  the  words  of  General 
Ewing  in  his  plea  for  Dr.  Mudd : 

"  The  very  frenzy  of  madness  ruled  the  hour.  Reason  was 
swallowed  up  in  patriotic  passion,  and  a  feverish  and  intense 
excitement  prevailed  most  unfavorable  to  a  calm,  correct  hear 
ing  and  faithful  repetition  of  what  was  said,  especially  by  the 
suspected.  Again,  and  again,  and  again  the  accused  was  cate 
chised  by  detectives,  each  of  whom  was  vieing  with  the  other 
as  to  which  should  make  the  most  important  discoveries,  and 
each  making  the  examination  with  a  preconceived  opinion  of 
guilt,  and  with  an  eager  desire,  if  not  determination,  to  find  in 
what  might  be  said  the  proofs  of  guilt.  Again,  the  witnesses 
testified  under  the  strong  stimulus  of  a  promised  reward  for 
information  leading  to  arrest  and  followed  by  convictions." 

The  Bureau  conducted  the  investigation  on  the 
preconceived  theory,  adopted,  as  we  have  seen,  by 
the  Secretary  of  War,  that  the  Confederate  Govern 
ment  was  the  source  of  the  conspiracy;  and,  by 
lavishing  promises  and  rewards,  it  had  no  difficulty 
in  finding  witnesses  who  professed  themselves  to 
have  been  spies  on  the  rebel  agents  in  Canada  and 
who  were  ready  to  implicate  them  and  through 
them  the  President  of  the  defunct  Confederacy  in 
the  assassination.  Richard  Montgomery  and  San- 
ford  Conover,  who  had  been  in  personal  communi 
cation  with  these  agents  during  the  past  year,  were 
eagerly  taken  into  the  employ  of  the  Bureau,  and 
made  frequent  trips  to  Canada,  to  return  every  time 
laden  with  fresh  proofs  of  the  complicity  of  the  rebels. 
2 


18  MARY    E.    SURRATT. 

To  illustrate  how  the  Bureau  of  Military  Justice 
dealt  with  witnesses  who  happened  to  have  been 
connected  more  or  less  closely  with  Booth,  and  who 
were  either  reluctant  or  unable  to  make  satisfactory 
disclosures,  here  are  two  extracts  from  the  evidence 
given  on  the  trial  of  John  H.  Surratt  in  1867. 

The  first  is  from  the  testimony  of  Lloyd,  the 
besotted  keeper  of  the  Surratt  tavern  : 

"I  was  first  examined  at  Bryantown  by  Colonel  Wells.  I 
was  next  examined  by  two  different  persons  at  the  Carroll 
prison.  I  did  not  know'either  of  their  names.  One  was  a 
military  officer.  I  think  some  of  the  prisoners  described  him 
as  Colonel  Foster.  I  saw  a  man  at  the  conspiracy  trial  as  one 
of  the  Judges  who  looked  very  much  like  him.  *  *  *  I  told 
him  I  had  made  a  fuller  statement  to  Colonel  Wells  than  I  could 
possibly  do  to  him  under  the  circumstances,  while  things  were 
fresh  in  my  memory.  His  reply  was  that  it  was  not  full  enough, 
and  then  commenced  questioning  me  whether  I  had  ever  heard 
any  person  say  that  something  wonderful  or  something  terrible 
was  going  to  take  place.  I  told  him  I  had  never  heard  anyone 
say  so.  Said  he  I  have  seen  it  in  the  newspapers. 

"He  jumps  up  very  quick  off  his  seat,  as  if  very  mad,  and 
asked  me  if  I  knew  what  I  was  guilty  of.  I  told  him,  under 
the  circumstances  I  did  not.  He  said  you  are  guilty  as  an 
accessory  to  a  crime  the  punishment  of  which  is  death.  With 
that  I  went  up  stairs  to  my  room." 

The  next  is  from  the  testimony  of  Lewis  J.  Car- 
land,  to  whom  Weichman  confessed  his  remorse  after 
the  execution  of  Mrs.  Surratt : 

"He  [Weichman]  said  it  would  have  been  very  different 
with  Mrs.  Surratt  if  he  had  been  let  alone ;  that  a  statement 
had  been  prepared  for  him,  that  it  was  written  out  for  him,  and 


PRELIMINARY.  19 

that  he  was  threatened  with  prosecution  as  one  of  the  conspira 
tors  if  he  did  not  swear  to  it.  He  said  that  a  detective  had 
been  put  into  Carroll  prison  with  him,  and  that  this  man  had 
written  out  a  statement  which  he  said  he  had  made  in  his 
sleep,  and  that  he  had  to  swear  to  that  statement." 

Let  us  add  another;  it  is  so  short  and  yet  so 
suggestive.  It  is  from  the  testimony  of  James  J. 
Gifford,  who  was  a  witness  for  the  prosecution  on 
both  trials. 

"  Q. — Do  you  know  Mr.  Weichman  ? 

"A. — I  have  seen  him. 

"  Q. — Were  you  in  Carroll  prison  with  him  ? 

"  A.— Yes,  sir. 

"  Q. — Did  he  say  in  your  presence  that  an  officer  of  the  gov 
ernment  had  told  him  that  unless  he  testified  to  more  than  he 
had  already  stated  they  would  hang  him  too  ? 

"A.— I  heard  the  officer  tell  him  so." 

After  a  fortnight  of  such  wholesale  processes  of 
arrest,  imprisonment,  inquisition,  reward  and  intim 
idation,  the  Bureau  of  Military  Justice  announced 
itself  ready  to  prove  the  charges  it  had  formulated. 
Thereupon  two  proclamations  were  issued  by  Presi 
dent  Johnson.  One,  dated  May  the  first,  after  stat 
ing  that  the  Attorney  General  had  given  his  opinion 
"  that  all  persons  implicated  in  the  murder  of  the 
late  President,  Abraham  Lincoln,  and  the  attempted 
assassination  of  the  Hon.  William  H.  Seward,  Sec 
retary  of  State,  and  in  an  alleged  conspiracy  to 
assassinate  other  officers  of  the  Federal  Government 
at  Washington  City,  and  their  aiders  and  abettors, 


20  MARY   E.   SURRATT. 

are  subject  to  the  jurisdiction  of  and  legally  triable 
before  a  Military  Commission,"  ordered  1st,  "that 
the  Assistant  Adjutant-General  (W.  A.  Nichols) 
detail  nine  competent  military  officers  to  serve  as  a 
Commission  for  the  trial  of  said  parties,  and  that  the 
Judge-Advocate-General  proceed  to  prefer  charges 
against  said  parties  for  their  alleged  offences,  and 
bring  them  to  trial  before  said  Military  Commis 
sion."  2d,  "  that  Brevet  Major-General  Hartranft 
be  assigned  to  duty  as  Special  Provost-Marshal- 
General  for  the  purpose  of  said  trial  and  attendance 
upon  said  Commission,  and  the  execution  of  its 
mandates." 

The  other  proclamation,  dated  May  2nd,  after  re 
citing  that  "  it  appears  from  evidence  in  the  Bureau 
of  Military  Justice,  that  the  atrocious  murder  of  the 
late  President,  Abraham  Lincoln,  and  the  attempted 
assassination  of  the  Hon.  William  H.  Seward,  Sec 
retary  of  State,  were  incited,  concerted,  and  procured 
by  and  between  Jefferson  Davis,  late  of  Richmond, 
Ya.,  and  Jacob  Thompson,  Clement  C.  Clay,  Beverly 
Tucker,  George  N.  Sanders,  William  C.  Cleary,  and 
other  rebels  and  traitors  against  the  Government  of 
the  United  States,  harbored  in  Canada,"  offered  the 
following  rewards : 

"$100,000  for  the  arrest  of  Jefferson  Davis. 

"$25,000  for  the  arrest  of  Clement  C.  Clay. 

"  $25,000  for  the  arrest  of  Jacob  Thompson,  late  of  Mississippi. 

"  $25,000  for  the  arrest  of  Geo.  N.  Saunders. 

"$25,000  for  the  arrest  of  Beverly  Tucker. 


PRELIMINARY.  21 

"$10,000  for  the  arrest  of  Wm.  C.  Cleary,  late  clerk  of 
Clement  C.  Clay. 

"  The  Provost-Marshal-General  of  the  United  States  is  di 
rected  to  cause  a  description  of  said  persons,  with  notice  of  the 
above  rewards,  to  be  published." 

At  this  date  the  President  of  the  defunct  Confed 
eracy  was  a  fugitive,  without  an  army;  and  bands 
of  U.  S.  Cavalry  were  already  on  the  scout  to  inter 
cept  his  flight.  Military  Justice,  however,  was  too 
impatient  to  await  the  arrest  of  the  prime  object  of 
its  sword  ;  and  in  obedience  to  the  first  proclamation 
proceeded  without  delay  to  organize  a  court  to  try 
the  prisoners  selected  from  the  multitude  undergoing 
confinement  as  the  fittest  victims  to  appease  the 
shade  of  the  murdered  President.  Over  some  of  the 
"suspect "the  Judge- Advocates  for  a  time  vacil 
lated,  whether  to  include  them  in  the  indictment  or 
to  use  them  as  witnesses  ;  but,  after  a  season  of  rigid 
examinations,  renewed  and  revised,  they  at  last  con 
cluded  that  such  persons  would  be  more  available 
in  the  latter  capacity. 

On  the  third  day  of  May  the  funeral  car,  which, 
leaving  Washington  on  the  twenty-first  of  April, 
had  borne  the  body  of  the  lamented  Lincoln  through 
State  after  State,  arrived  at  last  at  Springfield ;  and 
on  the  following  day  the  cherished  remains  were 
there  consigned  to  the  tomb.  On  the  sixth,  by 
special  order  of  the  Adjutant-General,  a  Military 
Commission  was  appointed  to  meet  at  Washington 
on  Monday,  the  eighth  day  of  May,  or  as  soon 


22  MARY   E.    SURRATT. 

thereafter  as  practicable,  "  for  the  trial  of  David 
E.  Herold,  George  A.  Atzerodt,  Lewis  Payne, 
Michael  O'Laughlin,  Edward  Spangler,  Samuel 
Arnold,  Mary  E.  Surratt,  Samuel  A.  Mudd  and 
such  other  prisoners  as  may  be  brought  before  it, 
implicated  in  the  murder  of  the  late  President  and 
in  the  attempted  assassination  of  the  Secretary  of 
State  and  in  an  alleged  conspiracy  to  assassinate 
other  officers  of  the  Federal  Government  at  Wash 
ington  City,  and  their  aiders  and  abettors.  By 
order  of  the  President  of  the  United  States."  And 
so,  all  things  being  in  readiness,  let  the  curtain  rise. 


PART   I. 

THE  MURDER. 


CHAPTER  I. 
THE  OPENING  OF  THE  COURT. 

ON  the  ninth  day  of  May  the  Commission  met 
but  only  to  adjourn  that  the  prisoners  might 
employ  counsel.  On  the  same  day,  two  of  its 
members,  General  Cyrus  B.  Comstock  and  Colonel 
Horace  Porter — names  to  be  noted  for  what  may 
have  been  a  heroic  refusal — were  relieved  from  the 
duty  of  sitting  upon  the  Commission,  and  two  other 
officers  substituted  in  their  stead. 

So  that  Tuesday,  May  10th,  1865— twenty-six 
days  after  the  assassination,  a  period  much  too  short 
for  the  intense  excitement  and  wild  desire  for  venge 
ance  to  subside — may  properly  be  designated  as  the 
first  session  of  the  Court.  On  the  early  morning 
of  that  day — before  daylight — Jefferson  Davis  had 
been  captured,  and  was  immediately  conducted,  not 
to  Washington  to  stand  trial  for  his  alleged  com- 

23 


24  MARY   E.    SURRATT. 

plicity  in  the  assassination,  but  to  Fort  Monroe. 
On  the  next  day  Clement  C.  Clay,  also,  surrendered 
himself  to  the  United  States  authorities,  and  was 
sent,  not  to  Washington  to  meet  the  awful  charge 
formulated  against  him,  but  to  the  same  military 
fortress. 

The  room  in  which  the  Commission  met  was  in 
the  northeast  corner  of  the  third  story  of  the  Old 
Penitentiary ;  a  building  standing  in  the  U.  S.  Ar 
senal  Grounds  at  the  junction  of  the  Potomac  with 
the  Eastern  Branch,  in  a  room  on  the  ground  floor 
of  which  the  body  of  Booth  had  been  secretly  buried. 
Its  windows  were  guarded  by  iron  gratings,  and  it 
communicated  with  that  part  of  the  prison  where 
the  accused  were  now  confined,  by  a  door  in  the 
western  wall.  The  male  prisoners  had  been  removed 
some  days  before  from  the  Monitors  to  the  Peniten 
tiary,  where  Mrs.  Surratt  was  already  incarcerated, 
and  each  of  them,  including  the  lady,  was  now  im 
mured  in  a  solitary  cell  under  the  surveillance  of  a 
special  guard. 

Around  a  table  near  the  eastern  side  of  this  room 
sat,  resplendent  in  full  uniform,  the  members  of  the 
Court.  At  the  head  as  President  was  Major-General 
David  Hunter — a  stern,  white-headed  soldier,  sixty- 
three  years  old;  a  fierce  radical ;  the  first  officer  to 
organize  the  slaves  into  battalions  of  war ;  the  warm 
personal  friend  of  Lincoln,  at  the  head  of  whose 
corpse  he  had  grimly  sat  as  it  rested  from  place 
to  place  on  the  triumphal  progress  to  its  burial,  and 


HER   TRIAL   AND    EXECUTION.  25 

from  whose  open  grave  he  had  hurried,  in  no  very 
judicial  humor  to  say  the  least,  to  take  his  seat  among 
the  Judges  of  the  accused  assassins.  On  his  right 
sat  Major-General  Lew  Wallace,  a  lawyer  by  pro 
fession;  afterwards  the  President  of  the  Court- 
Martial  which  tried  and  hung  Henry  Wirz;  but 
now,  by  a  sardonic  freak  of  destiny,  known  to 
all  the  world  as  the  tender  teller  of  "Ben  Hur, 
a  Tale  of  the  Christ."  To  the  right  of  General 
Wallace  sat  Brevet  Brigadier-General  James  A. 
Ekin  and  Brevet  Colonel  Charles  A.  Tompkins; 
about  whom  the  only  thing  remarkable  is  that  they 
had  stepped  into  the  places  of  the  two  relieved  offi 
cers,  Colonel  Tompkins  being  the  only  regular  army 
officer  on  the  Board.  On  the  left  of  General  Hunter 
sat,  first,  Brevet  Major-General  August  V.  Kautz, 
a  native  of  Germany ;  next,  Brigadier-General  Rob 
ert  S.  Foster,  who  may  or  may  not  have  been  the 
"Colonel  Foster"  alluded  to  in  the  testimony  of 
Lloyd  quoted  above,  as  threatening  the  witness  and 
as  afterwards  being  seen  by  him  on  the  Commis 
sion — the  presence  of  an  officer,  previously  engaged 
by  the  Government  in  collecting  testimony  against 
the  accused,  as  one  of  the  judges  to  try  him  not 
being  considered  a  violation  of  Military  Justice. 
Next  sat  Brigadier-General  Thomas  Mealey  Harris, 
a  West  Virginian,  and  the  author  of  a  book  entitled 
"  Calvinism  Vindicated  ;"  next,  Brigadier-General 
Albion  P.  Howe,  and  last,  Lieutenant-Colonel  David 
R.  Clendenin. 


26  MARY    E.    SURRATT. 

Not  one  of  these  nine  men  could  have  withstood 
the  challenge  which  the  common  law  mercifully  puts 
into  the  hands  of  the  most  abandoned  culprit.  They 
had  come  together  with  one  determined  and  un 
changeable  purpose — to  avenge  the  foul  murder  of 
their  beloved  Commander-in-Chief.  They  dreamt 
not  of  acquittal.  They  were,  necessarily,  from  the 
very  nature  of  their  task,  organized  to  convict. 

The  accused  were  asked,  it  is  true,  whether  they 
had  any  objections  to  any  member  of  the  Court. 
But  this  was  the  emptiest  of  forms,  as  bias  is  no 
cause  of  challenge  in  military  procedure,  and  per 
emptory  challenges  are  unknown. 

Moreover,  it  was  nothing  but  a  cruel  mockery  to 
offer  to  that  trembling  group  of  prisoners  an  oppor 
tunity,  which,  if  any  one  of  them  had  the  temerity 
to  embrace,  could  only  have  resulted  in  barbing 
with  the  sting  of  personal  insult  the  hostile  predis 
position  of  the  judges. 

At  the  foot  of  the  table  around  which  the  Court 
sat — the  table  standing  parallel  with  the  north  side 
of  the  room — there  was  another,  around  which  were 
gathered  the  three  prosecuting  officers,  who,  accord 
ing  to  military  procedure,  were  also  members  of  the 
Commission. 

First,  was  Brigadier-General  Joseph  Holt,  the 
Judge- AH vocate  of  the  U.  S.  Army,  and  the  Re 
corder  of  the  Commission.  During  his  past  mili 
tary  career  he  had  distinguished  himself  on  many  a 
bloody  court-martial. 


HER   TRIAL   AND    EXECUTION.  27 

Second,  designated  by  General  Holt  as  First 
Assistant  or  Special  Judge- Advocate,  was  Hon. 
John  A.  Bingham,  of  Ohio — long  a  Representative 
in  Congress,  then  for  a  short  interval  a  Military 
Judge- Advocate,  now  a  Representative  in  Congress 
again,  and  to  become  in  the  strange  vicissitudes  of 
the  near  future,  one  of  the  managers  of  the  impeach 
ment  of  President  Johnson,  whom  he  now  cannot 
praise  too  highly.  He  was  one  of  those  fierce  and 
fiery  western  criminal  lawyers,  gifted  with  that  sort 
of  vociferous  oratory  which  tells  upon  jurors  and 
on  the  stump,  by  nature  and  training  able  to  see 
but  one  side  to  a  case  and  consequently  merciless  to 
his  victims.  His  special  function  was  to  cross- 
examine  and  brow-beat  the  witnesses  for  the  defense, 
a  branch  of  his  profession  in  which  he  was  proudly 
proficient,  and,  above  all,  by  pathetic  appeals  to 
their  patriotism  and  loyalty,  and  by  measureless 
denunciations  of  the  murder  of  their  Commander- 
in-Chief  and  of  the  Rebellion,  to  keep  up  at  a  white 
heat  the  already  burning  passions  of  the  officers 
composing  the  tribunal.  Next  to  him  came  Colonel 
Henry  L.  Burnett ;  brought  from  Indiana  where 
he  had  won  recent  laurels  in  conducting  the  trial 
of  Milligau  for  treason  before  a  Military  Com 
mission —  laurels,  alas!  soon  to  be  blasted  by  the 
decision  of  the  U.  S.  Supreme  Court  pronouncing 
that  and  all  other  Military  Commissions  for  the 
trial  of  citizens  in  places  where  the  civil  courts 
are  open  illegal,  and  setting  free  the  man  this 


28  MARY    E.    SUERATT. 

zealous  public  servant  had  been  instrumental  in 
condemning  to  death. 

In  the  centre  of  the  room  was  a  witness-stand 
facing  the  Court.  To  the  left  of  the  witness-stand  a 
table  for  the  official  reporters.  Along  the  western 
side  and  directly  opposite  the  Court  was  a  platform 
about  a  foot  high  and  four  feet  broad,  with  a  strong 
railing  in  front  of  it.  This  was  the  prisoners'  dock. 
The  platform  was  divided  near  the  left  hand  or 
southern  corner  by  the  doorway  which  led  to  the 
cells.  In  front  of  the  southern  end  of  the  dock  and 
behind  the  witness-stand  was  the  table  of  the  pris 
oners7  counsel. 

At  the  appointed  hour  the  door  in  the  western 
side  opens  and  an  impressive  and  mournful  proces 
sion  appears.  Six  soldiers  armed  to  the  teeth  are 
interspersed  among  seven  male  prisoners  and  one 
woman. 

First  walks  Samuel  Arnold,  the  young  Balti- 
morean,  who  is  to  sit  at  the  extreme  right  (/.  e.,  of 
the  spectators),  followed  close  by  his  armed  guard ; 
next,  Dr.  Samuel  T.  Mudd  and  a  soldier;  next, 
Edward  Spangler  and  a  soldier;  next,  Michael 
O'Laughlin,  another  Baltimorean,  and  his  soldier; 
next,  George  B.  Atzerodt  and  a  soldier  ;  next,  Lewis 
Payne,  a  tall  gladiator,  though  only  twenty  years 
old,  and  his  soldier;  and  then  Davi^  E.  Herold, 
looking  like  an  insignificant  boy,  who  is  to  sit  next 
the  door.  As  they  enter,  their  fetters  clanking  at 
every  step,  they  turn  to  their  left  and  take  seats  on 


HER   TRIAL   AND    EXECUTION.  29 

the  platform  in  the  order  named,  the  six  soldiers 
being  sandwiched  here  and  there  between  two  of 
the  men. 

Each  of  these  prisoners,  during  the  entire  trial, 
was  loaded  down  with  irons  made  as  massive  and 
uncomfortable  as  possible.  Their  wrists  were  bound 
with  the  heaviest  hand-cuffs,  connected  by  bars  of 
iron  ten  inches  long  (with  the  exception  of  Dr. 
Mudd,  whose  hand-cuffs  were  connected  by  a  chain), 
so  that  they  could  not  join  their  hands.  Their  legs 
were  weighed  down  by  shackles  joined  by  chains 
made  short  enough  to  hamper  their  walk.  In  addi 
tion  to  these  fetters,  common  to  all,  Payne  and 
Atzerodt  had,  attached  by  chains  to  their  legs,  huge 
iron  balls,  which  their  guards  had  to  lift  and  carry 
after  them  whenever  they  entered  or  left  the  Court 
room. 

Last,  there  emerges  from  the  dungeon-like  dark 
ness  of  the  doorway  the  single  female  prisoner,  Mary 
E.  Surratt.  She,  alone,  turns  to  her  right  and,  con 
sequently,  when  she  is  seated  has  the  left  hand  corner 
of  the  platform  to  herself.  But  she  is  separated 
from  her  companions  in  misery  by  more  than  the 
narrow  passage-way  that  divides  the  dock  ;  for  she 
is  a  lady  of  fair  social  position,  of  unblemished 
character  and  of  exemplary  piety,  and,  besides,  she 
is  a  mother,  a  widow,  and,  in  that  room  amongst  all 
those  soldiers,  lawyers,  guards,  judges  and  prisoners, 
the  sole  representative  of  her  sex.  Her  womanhood 
is  her  peculiar  weakness,  yet  still  her  only  shield. 


30  MARY   E.    SURRATT. 

Is  she  too  ironed  ? 

The  unanimous  testimony  of  eye-witnesses  pub 
lished  at  the  time  of  the  trial  is,  that,  though  not 
hand-cuffed,  she  was  bound  with  iron  "  anklets  "  on 
her  feet.  And  this  detail,  thus  universally  pro 
claimed  in  the  Northern  Press  and  by  loyal  writers, 
was  mentioned  not  as  conveying  the  slightest  hint  of 
reprobation,  but  as  constituting,  like  the  case  of  the 
male  prisoners,  a  part  of  the  appropriate  treatment 
by  the  military  of  a  person  suffering  under  such  a 
charge.  And,  moreover,  no  contemporaneous  denial 
of  this  widespread  circumstance  was  anywhere  made, 
either  by  Provost-Marshal,  Counsel,  Judge-Advo 
cate  or  member  of  the  Court.  It  passed  unchallenged 
into  history,  like  many  another  deed  of  shame,  over 
which  it  is  a  wonder  that  any  man  could  glory,  but 
which  characterized  that  period  of  frenzy. 

Eight  years  after,  during  the  bitter  controversy 
between  Andrew  Johnson  and  Joseph  Holt  over  the 
recommendation  of  mercy  to  Mrs.  Surratt,  General 
Hartranft,  the  former  Special  Provost-Marshal  in 
charge  of  the  prisoners,  first  broke  silence  and,  com 
ing  to  the  aid  of  the  sorely-tried  Ex- Judge- Advocate, 
sent  him  a  vehement  categorical  denial  that  Mrs. 
Surratt  was  ever  manacled  at  any  time,  or  that  there 
was  ever  a  thought  of  manacling  her  in  any  one's 
mind.  Now,  what  force  should  be  given  to  such  a 
denial  by  so  distinguished  an  officer,  so  long  delayed 
and  in  the  face  of  such  universal  contemporaneous 
affirmation  ? 


HER   TRIAL   AND    EXECUTION.  31 

No  one  knows  how  close  and  exclusive  the  charge 
of  the  prisoners  by  the  special  Provost- Marshal  was, 
nor  how  liable  to  interruption,  interference  and  super 
session  by  the  omnipotent  Bureau  of  Military  Justice, 
or  by  the  maddened  Secretary  of  War  and  his  obse 
quious  henchmen. 

At  the  time  the  naked  assertion  was  made,  to  heap 
indignities  upon  the  head  of  the  only  woman  in  the 
whole  country  whom  the  soldiery  took  for  granted 
was  the  one  female  fiend  who  helped  to  shed  the 
blood  of  the  martyred  President,  was  so  consonant 
with  the  angry  feeling,  in  military  circles,  that  an 
officer,  having  only  a  general  superintendence  over 
the  custody  and  treatment  of  what  was  called  "  a 
band  of  fiends,"  would  be  very  likely  to  overlook 
such  a  small  matter  as  that  the  she-assassin  was  not 
exempted,  in  one  detail,  from  the  contumelies  and 
cruelties  it  was  thought  patriotic  to  pile  upon  her 
co-conspirators.  The  only  wonder  ought  to  be  that 
they  relieved  her  from  the  hand-cuffs.  They  appear 
to  have  discriminated  in  the  case  of  Dr.  Mudd  also, 
substituting  a  chain  for  an  inflexible  bar  so  that  he 
for  one  could  move  his  hands.  There  may  have 
been  some  unmentioned  physical  reasons  for  both 
of  these  alleviations,  but  we  may  rest  assured  that 
neither  sex,  in  the  one  case,  nor  profession  in  the 
other,  was  among  them. 

General  Hartranft  (or  any  other  General)  never 
denied,  or  thought  it  necessary  to  deny,  that  the 
seven  male  prisoners  sat  through  the  seven  weeks 


32  MAKY   E.    SUERATT. 

of  the  trial,  loaded,  nay  tortured,  with  irons.  And 
there  is  no  doubt  that  this  unspeakable  outrage,  if 
thought  of  at  all  at  the  trial  by  the  soldiery — high 
or  low — so  far  from  being  thought  of  as  a  matter 
of  reprobation,  was  a  subject  of  grim  merriment  or 
stern  congratulation. 

Eight  years,  however,  passed  away — eight  years, 
in  which  a  fund  of  indignation  at  such  brutality, 
above  all  to  a  woman,  had  been  silently  accumulat 
ing,  until  at  length  to  a  soldier,  whose  beclouding 
passions  of  the  moment  had  in  the  meantime  cooled 
d,own,  its  weight  made  every  loop-hole  of  escape  an 
entrance  for  the  very  breath  of  life. 

The  entire  atmosphere  had  changed,  and  denials 
became  the  order  of  the  day.  Memory  is  a  most 
convenient  faculty ;  and  to  forget  what  the  lapse  of 
years  has  at  last  stamped  with  infamy  is  easy,  when 
the  event  passed  at  the  time  as  a  mere  matter  of 
course.  Leaving  these  tardy  repudiators  of  an 
iniquity,  the  responsibility  for  which  in  the  day 
of  its  first  publication  they  tacitly  assumed  with 
the  utmost  complacency,  to  settle  the  question  with 
posterity ; — we  insist  that  the  preference  is  open  to 
writers  upon  the  events  of  the  year  1865  to  rely 
upon  the  unprejudiced  and  unchallenged  statements 
of  eye-witnesses ;  and,  therefore,  we  do  here  reaffirm 
that  Mary  E.  Surratt  walked  into  the  court-room, 
and  sat  during  her  trial,  with  shackles  upon  her 
limbs. 


HER   TRIAL   AND    EXECUTION.  33 

At  this  late  day  it  is  a  most  natural  supposition 
that  these  nine  stalwart  military  heroes,  sitting  com 
fortably  around  their  table,  arrayed  in  their  bright 
uniforms,  with  their  own  arms  and  their  own  legs 
unfettered,  must  have  felt  at  least  a  faint  flush  of 
mingled  pity,  shame  and  indignation,  as  they  looked 
across  that  room  at  that  ironed  row  of  human  beings. 

Culprits  arraigned  before  them,  guarded  by  armed 
soldiery,  without  arms  themselves — why,  in  the 
name  of  justice,  drag  them  into  Court  and  force 
them  to  sit  through  a  long  trial,  bound  with  iron, 
hand  and  foot?  Was  it  to  forestall  a  last  possible 
effort  of  reckless  and  suicidal  despair  ? 

These  brave  warriors  could  not  have  feared  the 
naked  arm  of  Payne,  nor  have  indulged  the  childish 
apprehension  that  seven  unarmed  men  and  one  un 
armed  woman  might  overpower  six  armed  soldiers 
and  nine  gallant  officers,  and  effect  their  escape  from 
the  third  story  of  a  prison  guarded  on  all  sides  with 
bayonets  and  watched  by  detective  police  !  And  yet, 
so  far  as  appears,  no  single  member  of  the  Court,  to 
whom  such  a  desecration  of  our  common  humanity 
was  a  daily  sight  for  weeks,  thought  it  deserving  of 
notice,  much  less  of  protest. 

There  is  but  one  explanation  of  this  moral  insen 
sibility,  and  that  applies  with  the  same  force  to  the 
case  of  the  woman  as  to  those  of  the  men.  It  is, 
that  the  accused  were  already  doomed.  For  them 
no  humiliation  could  be  thought  too  deep,  no  indig 
nity  too  vile,  no  hardship  too  severe,  because  their 
3 


34  MARY    E.    SURRATT. 

guilt  was  predetermined  to  be  clear.  And  the  mem 
bers  of  the  Military  Commission,  as  they  looked 
across  the  room  at  that  sorry  sight,  saw  nothing 
incongruous  with  justice,  or  even  with  the  most 
chivalrous  decorum,  that  the  traitorous  murderers 
of  their  beloved  Commander-in-Chief  should  wear 
the  shackles  which  were  the  proper  precursors  of  the 
death  of  ignominy,  they  were  resolved  the  outlaws 
should  not  escape. 

We,  civilians,  must  ever  humbly  bear  in  mind 
that  the  rule  of  the  common  law,  that  every  person 
accused  of  crime  is  presumed  to  be  innocent  until  his 
guilt  is  established  beyond  a  reasonable  doubt — a 
rule  the  benignity  of  which  is  often  sneered  at  by 
soldiers  as  giving  occasion  for  lawyers'  tricks  and 
quibbles,  and  as  an  impediment  to  swift  justice,  is 
reversed  in  military  courts,  where  every  person 
accused  of  crime  is  presumed  to  be  guilty  until  he 
himself  prove  his  innocence. 

After  the  prisoners  had  been  seated,  and  the  mem 
bers  of  the  Commission,  the  Judge- Advocates  and 
the  official  reporters  sworn  in,  the  accused  were  sev 
erally  arraigned.  There  was  but  one  Charge  against 
the  whole  eight.  Carefully  formulated  by  the  three 
Judge-Advocates  upon  the  lines  of  the  theory 
adopted  by  the  Secretary  of  War,  and  which  Gen. 
Baker  and  the  Bureau  of  Military  Justice  had  been 
moving  heaven  and  earth  to  establish,  it  was  so  con 
trived  as  to  allege  a  crime  of  such  unprecedented,  far- 
reaching  and  profound  heinousness  as  to  be  an 


HER   TRIAL   AND   EXECUTION.  35 

adequate  cause  of  such  an  unprecedented  and  pro 
found  calamity. 

The  eight  prisoners  were  jointly  and  severally 
charged  with  nothing  less  than  having,  in  aid  of  the 
Rebellion,  "traitorously"  conspired,  "  together  with 
one  John  H.  Surratt,  John  Wilkes  Booth,  Jefferson 
Davis,  George  N.  Sanders,  Beverley  Tucker,  Jacob 
Thompson,  William  C.  Cleary^  Clement  C.  Clay, 
George  Harper,  George  Young  and  others  unknown, 
to  kill  and  murder  "  u  Abraham  Lincoln,  late  Presi 
dent  of  the  United  States  and  Commander-in-Chief 
of  the  Army  and  Navy  thereof,  Andrew  Johnson, 
then  Vice-President,  Wm.  H.  Seward,  Secretary  of 
State,  and  Ulysses  S.  Grant,  Lieutenant-General ;  " 
and  of  having,  in  pursuance  of  such  "  traitorous 
conspiracy,"  "together  with  John  Wilkes  Booth 
and  John  H.  Surratt"  "traitorously"  murdered 
Abraham  Lincoln,  "  traitorously "  assaulted  with 
intent  to  kill,  William  H.  Seward,  and  lain  in  wait 
"traitorously"  to  murder  Andrew  Johnson  and 
Ulysses  S.  Grant. 

On  this  elastic  comprehensive  Charge,  in  which 
treason  and  murder  are  vaguely  commingled,  every 
one  of  the  men,  and  Mary  E.  Surratt,  were  arraigned, 
plead  not  guilty,  and  were  put  upon  trial.  There  is 
no  doubt,  by  the  way,  that  the  Secretary  of  War 
would  have  been  included  as  one  of  the  contemplated 
victims,  had  not  Edwin  M.  Stanton  borne  so  promi 
nent  a  part  in  the  prosecution ;  and  it  was  for  this 
reason,  and  not  because  of  any  change  in  the  evi- 


36  MARY   E.   SURKATT. 

dence,  that  General  Grant  stood  alone,  as  the  mark 
of  O'Laughlin. 

To  this  single  Charge  there  was,  also,  but  a  single 
Specification.  This  document  alleged  that  the  design 
of  all  these  traitorous  conspirators  was,  to  deprive 
the  Army  and  Navy  of  their  Commander-in-Chief 
and  the  armies  of  their  Commander ;  to  prevent  a 
lawful  election  of  President  and  Vice-President ; 
and  by  such  means  to  aid  and  comfort  the  Rebellion 
and  overthrow  the  Constitution  and  laws. 

It  then  alleged  the  killing  of  Abraham  Lincoln 
by  Booth  in  the  prosecution  of  the  conspiracy,  and 
charged  the  murder  to  be  the  act  of  the  prisoners, 
as  well  as  of  Booth  and  John  H.  Surratt.  It  then 
alleged  that  Spangler,  in  furtherance  of  the  con 
spiracy,  aided  Booth  in  obtaining  entrance  to  the 
box  of  the  theatre,  in  barring  the  door  of  the  theatre 
box,  and  in  effecting  his  escape.  Then,  that  Herold, 
in  furtherance  of  the  conspiracy,  aided  and  abetted 
Booth  in  the  murder,  and  in  effecting  his  escape. 
Then,  that  Payne,  in  like  furtherance,  made  the 
murderous  assault  on  Seward  and  also  on  his  two 
sons  and  two  attendants.  Then,  that  Atzerodt,  in 
like  furtherance,  at  the  same  hour  of  the  night,  lay 
in  wait  for  Andrew  Johnson  with  intent  to  kill  him. 
Then,  that  Michael  O'Laughlin,  in  like  furtherance, 
on  the  nights  of  the  13th  and  14th  of  April,  lay  in 
wait  for  General  Grant  with  like  intent.  Then,  that 
Samuel  Arnold,  in  prosecution  of  the  conspiracy, 
u  did,  on  or  before  the  6th  day  of  March,  1865,  and 


HER   TRIAL   AND    EXECUTION.  37 

on  divers  other  days  and  times  between  that  day 
and  the  15th  day  of  April,  1865,  combine,  conspire 
with  and  counsel,  abet,  comfort  and  support"  Booth, 
Payne,  Atzerodt,  O'Laughlin  and  their  confederates. 
Then,  "  that,  in  prosecution  of  the  conspiracy,  Mary 
E.  Surratt,  on  or  before  the  6th  of  March,  1865, 
and  on  divers  other  days  and  times  between  that  day 
and  the  20th  of  April,  1865,  received,  entertained, 
harbored  and  concealed,  aided  and  assisted  "  Booth, 
Herold,  Payne,  John  H.  Surratt,  O'Laughlin, 
Atzerodt,  Arnold  and  their  confederates,  "  with  the 
knowledge  of  the  murderous  and  traitorous  con 
spiracy  aforesaid,  and  with  intent  to  aid,  abet  and 
assist  them  in  the  execution  thereof,  and  in  escaping 
from  justice."  And,  lastly,  that  in  prosecution  of 
the  conspiracy  Samuel  A.  Mudd  did  from  on  or 
before  the  6th  day  of  March,  to  the  20th  of  April 
"advise,  encourage,  receive,  entertain,  harbor  and 
conceal,  aid  and  assist"  Booth,  Herold,  Payne,  John 
H.  Surratt,  O'Laughlin,  Atzerodt,  Mary  E.  Surratt, 
Arnold  and  their  confederates,  in  its  execution  and 
their  escape. 

After  the  prisoners,  who  as  yet  had  no  counsel, 
had  pleaded  not  guilty  to  the  Charge  and  Specifica 
tion,  the  Court  adopted  rules  of  proceeding — one  of 
which  was  that  the  sessions  of  the  Court  should  be 
secret,  and  no  one  but  the  sworn  officers  and  the 
counsel  for  the  prisoners,  also  sworn  to  secrecy, 
should  be  admitted,  except  by  permit  of  the  Presi 
dent  of  the  Commission ;  and  that  only  such  portions 


38  MAEY    E.    SURRATT. 

of  the  testimony  as  the  Judge- Advocate  should  des 
ignate  should  be  made  public. 

On  the  next  day  (Thursday,  May  llth),  Mr. 
Thomas  Ewing,  Jr.  and  Mr.  Frederick  Stone  ap 
peared  as  counsel  for  Dr.  Mudd,  and  Mr.  Frederick 
A.  Aiken  and  Mr.  John  W.  Clampitt  for  Mrs. 
Surratt;  and  on  the  succeeding  day  (12th),  Mr. 
Frederick  Stone  appeared  for  Herold  "  at  the  earnest 
request  of  his  widowed  mother  and  estimable  sis 
ters  ; "  General  Ewing  for  Arnold  (and  on  Monday, 
the  15th,  for  Spangler) ;  Mr.  Walter  S.  Cox  for 
O'Laughlin,  and  Mr.  William  E.  Doster  for  Payne 
and  Atzerodt. 

By  the  rules  of  the  Commission  no  counsel  could 
appear  for  the  prisoners  unless  he  took  the  "  iron 
clad  oath  "  or  filed  evidence  of  having  taken  it.  So 
supersensitive  was  the  loyalty  of  the  Court  that  it 
could  not  brook  the  presence  of  a  "  sympathizer 
with  the  South,"  even  in  such  a  confidential  relation 
as  counsel  for  accused  conspirators  in  aid  of  the 
Rebellion. 

The  demeanor  of  the  Court  towards  the  counsel 
for  the  defense,  reflecting  as  in  a  mirror  the  humor 
of  the  Judge-Advocates,  was  highly  characteristic. 
Sometimes  they  were  treated  with  haughty  indiffer 
ence,  sometimes  with  ironical  condescension,  often 
with  contumely,  generally  with  contempt.  Their 
objections  were  invariably  overruled,  unless  acceded 
to  by  the  Judge- Advocate.  The  Commission  could 


HER   TRIAL    AND    EXECUTION.  39 

not  conceal  its  secret  opinion  that  they  were  engaged 
in  a  disreputable  and  disloyal  employment. 

This  statement  must  be  somewhat  qualified,  how 
ever,  so  far  as  it  relates  to  General  Ewing.  He  was, 
or  had  been  recently,  of  equal  rank  in  the  army  of 
the  Union  with  the  members  of  the  Court.  He  was 
a  brother-in-law  of  General  Sherman,  and  he  had 
acquired  a  high  reputation  for  gallantry  and  skill, 
as  well  as  loyalty,  during  the  war.  That  such  a 
distinguished  fellow-soldier  should  appear  to  defend 
the  fiendish  murderers  of  their  beloved  Commander- 
in-Chief — outlaws  they  were  detailed  as  a  Court  to 
hang — evidently  perplexed  and  disconcerted  these 
military  Judges  and  tended  in  some  degree  to  curb 
the  over-bearing  insolence  of  the  Special  Judge- 
Advocate.  Thus,  this  able  lawyer  and  gallant  officer 
and  noble  man  was  enabled  to  be  "the  leading  spirit 
of  the  defense;"  and,  as  we  shall  see,  he  wrought 
the  miracle  of  plucking  from  the  deadly  clutches  of 
the  Judge-Advocates  the  lives  of  every  one  of  the 
men  he  defended.  But  this  instance  was  a  most 
notable  exception.  As  a  rule,  even  the  silent  pres 
ence  of  the  counsel  for  the  accused  jarred  upon  the 
feelings  of  the  Court,  and  their  vocal  interference 
provoked,  at  intervals,  its  outspoken  animadversion. 
A  trifling  incident  will  serve  to  illustrate. 

The  witnesses,  while  giving  their  testimony,  were 
required  to  face  the  Court,  so  that  they  necessarily 
turned  their  backs  on  the  counsel  for  the  prisoners 
who  were  placed  some  distance  behind  the  witness- 


40  MARY    E.    SURRATT. 

stand.  These  counsel  were  also  forced  to  cross- 
examine  the  witnesses  for  the  prosecution,  and 
interrogate  their  own,  without  seeing  their  faces ; 
and  as  often  as  a  witness  in  instinctive  obedience  to 
the  dictates  of  good  manners  would  turn  round  to 
answer  a  question,  the  President  of  the  Court  would 
check  him  by  a  " sharp  reprimand"  and  the  stern 
admonition  :  "  Face  the  Court !  "  The  confusion  of 
a  witness,  especially  for  the  defense,  when  thundered 
at  in  this  way  by  General  Hunter,  and  the  reiterated 
humiliation  of  counsel  implied  in  the  order,  seem 
to  have  only  called  forth  the  wonder  that  witnesses 
"  would  persist  in  turning  towards  the  prisoners' 
counsel ! " 

Clearly  these  lawyers  were  an  unmeaning,  an  im 
peding,  an  offensive,  though  unavoidable,  superfluity. 


CHAPTER   II. 

ANIMUS  OF  THE  JUDGES. 

ON  Saturday,  the  13th  of  May,  an  incident 
occurred  which  throws  much  light  upon  the 
judicial  temper  of  the  Court  at  the  very  beginning 
of  the  trial.  On  that  day  Reverdy  Johnson  ap 
peared  as  counsel  for  Mrs.  Surratt.  Admitted  to 
the  bar  in  1815,  Senator  of  the  United  States  as  far 
back  as  1845,  Attorney -General  of  the  United  States 
as  long  ago  as  1849,  and  holding  the  position  of 
Senator  of  the  United  States  again  at  that  very 
moment ;  having  taken  the  constitutional  oath  in 
all  the  Courts  including  the  Supreme  Court  of  the 
United  States  at  whose  bar  he  was  one  of  the  most 
eminent  advocates;  three  years  after  this  time  to  be 
Minister  Plenipotentiary  to  England ;  as  he  stood 
there,  venerable  both  in  years  and  in  honors,  ap 
pearing  at  great  personal  and  professional  sacrifice, 
gratuitously,  for  a  woman  in  peril  of  her  life,  one 
would  have  thought  him  secure  at  least  from  insult. 
Yet  no  sooner  did  he  announce  his  intention,  if  the 
Court  would  permit  him  at  any  time  to  attend  to  his 
imperative  duties  elsewhere,  to  act  as  counsel,  than 
the  President  of  the  Commission  read  aloud  a  note 

41 


42 


MARY    E.    SURRATT. 


he  had  received  from  one  of  his  colleagues  objecting 
"  to  the  admission  of  Reverdy  Johnson  as  a  counsel 
before  this  Court  on  the  ground  that  he  does  not 
recognize  the  moral  obligation  of  an  oath  that  is 
designed  as  a  test  of  loyalty ; "  and,  in  support  of 
the  objection,  referring  to  Mr.  Johnson's  letter  to 
the  people  of  Maryland  pending  the  adoption  of 
the  new  constitution  of  1864. 

The  following  colloquy  then  took  place : 

"Mr.  Johnson. — May  I  ask  who  the  member  of  the  Court  is 
that  makes  that  objection  ? 

"The  President. — Yes,  sir,  it  is  General  Harris,  and,  if  he 
had  not  made  it,  I  should  have  made  it  myself. 

"  Mr.  Johnson. — I  do  not  object  to  it  at  all.  The  Court  will 
decide  if  1  am  to  be  tried. 

"The  President.— The  Court  will  be  cleared. 

"  Mr.  Johnson. — I  hope  I  shall  be  heard. 

"General  Ekin. — I  think  it  can  be  decided  without  clearing 
the  Court. 

"General  Wallace. — I  move  that  Mr.  Johnson  be  heard. 

"  The  President  and  others. — Certainly. 

"  Mr.  Johnson. — Is  the  opinion  here  to  which  the  objection 
refers  ? 

"The  President.— I  think  it  is  not." 

It  was  discovered,  farther  on,  that  General  Harris 
by  his  own  admissions  had  not  even  seen  the  opinion 
since  he  had  read  it  a  year  ago,  and  that  his  objec 
tion,  involving  so  grave  an  attack  upon  the  moral 
character  of  so  distinguished  a  man,  was  based  upon 
a  mere  recollection  of  its  contents  after  that  lapse 
of  time. 


HER   TRIAL    AND    EXECUTION.  43 

Naturally,  the  gray-haired  statesman  and  lawyer 
was  indignant  at  this  premeditated  insult.  In  his 
address  to  the  Court  he  repudiated  with  scorn  the 
interpretation  put  upon  his  letter  by  his  accuser. 
He  explained  the  circumstances  under  which  the 
opinion  was  delivered ;  that  the  Maryland  Conven 
tion  had  prescribed  an  oath  to  the  voter  which  they 
had  no  right  to  exact;  "and  all  that  the  opinion 
said,  or  was  intended  to  say,  was,  that  to  take  the 
oath  voluntarily  was  not  a  craven  submission  to 
usurped  authority,  but  was  necessary  in  order  to 
enable  the  citizen  to  protect  his  rights  under  the  then 
constitution ;  and  that  there  was  no  moral  harm  in 
taking  an  oath  which  the  Convention  had  no  au 
thority  to  impose." 

Among  other  things  he  said  : 

"There  is  no  member  of  this  Court,  including  the  President, 
and  the  member  that  objects,  who  recognizes  the  obligation  of 
an  oath  more  absolutely  than  I  do  ;  and  there  is  nothing  in  my 
life,  from  its  commencement  to  the  present  time,  which  would 
induce  me  for  a  moment  to  avoid  a  comparison  in  all  moral 
respects  between  myself  and  any  member  of  this  Court. 

"  If  such  an  objection  was  made  in  the  Senate  of  the  United 
States,  where  I  am  known,  I  forbear  to  say  how  it  would  be 
treated. 

"I  have  lived  too  long,  gone  through  too  many  trials,  ren 
dered  the  country  such  services  as  my  abilities  enabled  me,  and 
the  confidence  of  the  people  in  whose  midst  I  am  has  given  me 
the  opportunity,  to  tolerate  for  a  moment — come  from  whom  it 
may — such  an  aspersion  upon  my  moral  character.  I  am  glad 
it  is  made  now,  when  I  have  arrived  at  that  period  of  life  when 
it  would  be  unfit  to  notice  it  in  any  other  way. 


44  MARY   E.   SURE  ATT. 

"  I  am  here  at  the  instance  of  that  lady  (pointing  to  Mrs. 
Surratt)  whom  I  never  saw  until  yesterday,  and  never  heard  of, 
she  being  a  Maryland  lady ;  and  thinking  that  I  could  be  of 
service  to  her,  and  protesting  as  she  has  done  her  innocence  to 
me — of  the  facts  I  know  nothing — because  I  deemed  it  right, 
I  deemed  it  due  to  the  character  of  the  profession  to  which  I 
belong,  and  which  is  not  inferior  to  the  noble  profession  of 
which  you  are  members,  that  she  should  not  go  undefended.  I 
knew  I  was  to  do  it  voluntarily,  without  compensation  ;  the  law 
prohibits  me  from  receiving  compensation ;  but  if  it  did  not, 
understanding  her  condition,  I  should  never  have  dreamed 
of  refusing  upon  the  ground  of  her  inability  to  make  com 
pensation." 

General  Harris,  in  reply,  insisted  that  the  remarks 
of  Mr.  Johnson,  explanatory  of  the  letter,  corrobo 
rated  his  construction.  "  I  understand  him  to  say 
that  the  doctrine  which  he  taught  the  people  of  his 
state  was,  that  because  the  Convention  had  framed 
an  oath,  which  was  unconstitutional  and  illegal  in 
his  opinion,  therefore  it  had  no  moral  binding  force, 
and  that  people  might  take  it  and  then  go  and 
vote  without  any  regard  to  the  subject  matter  of 
the  oath." 

Mr.  Johnson,  interrupting,  denied  having  said 
any  such  thing.  General  Hunter,  thereupon,  to  help 
his  colleague  out,  had  the  remarks  read  from  the 
record.  Mr.  Johnson  assenting  to  the  correctness 
of  the  report,  General  Harris  continued  :  "  If  that 
language  does  not  justify  my  conclusion,  I  confess 
I  am  unable  to  understand  the  English  language ; " 
and  then  repeated  his  construction  of  the  letter. 


HER   TRIAL   AND   EXECUTION.  45 

After  he  had  concluded,  Mr.  Johnson  endeavored 
to  show  the  author  of  "  Calvinism  Vindicated  "  that 
he  did  not  understand  the  English  language,  by 
pointing  out  the  distinction  between  stating  "  there 
was  no  harm  in  taking  an  oath,  and  telling  the 
people  of  Maryland  that  there  would  be  no  harm  in 
breaking  it  after  it  was  taken."  Again  repelling 
the  misconstruction  attempted  to  be  put  upon  his 
words,  he  proceeded  to  open  a  new  line  as  follows : 

"  But,  as  a  legal  question,  it  is  something  new  to 
me  that  the  objection,  if  it  was  well  founded  in  fact 
is  well  founded  in  law.  Who  gives  to  the  Court 
the  jurisdiction  to  decide  upon  the  moral  character 
of  the  counsel  who  may  appear  before  them  ?  Who 
makes  them  the  arbiters  of  the  public  morality  and 
professional  morality  ?  What  authority  have  they, 
under  their  commission,  to  rule  me  out,  or  to  rule 
any  other  counsel  out,  upon  the  ground,  above  all, 
that  he  does  not  recognize  the  validity  of  an  oath, 
even  if  they  believed  it?" 

General  Harris,  in  rejoinder,  stated  that  under  the 
rules  adopted  by  the  Commission  gentlemen  appear 
ing  as  counsel  for  the  accused  must  either  produce 
a  certificate  of  having  taken  the  oath  of  loyalty  or 
take  it  before  the  Court,  and  that  therefore  the  Court 
had  a  right  to  inquire  whether  counsel  held  such 
opinions  as  to  be  incompetent  to  take  the  oath.  He 
then  expressed  his  gladness  "  to  give  the  gentleman 
the  benefit  of  his  disclaimer.  It  is  satisfactory  to 
me,  but  it  is,  I  must  insist,  a  tacit  admission  that 


46  MARY   E.    SURRATT. 

there  was  some  ground  for  the  view  upon  which  my 
objection  was  founded." 

Mr.  Johnson  closed  this  irritating  discussion  by 
saying : 

"The  order  under  which  you  are  assembled  gives  you  no 
authority  to  refuse  me  admission  because  you  have  no  authority 
to  administer  the  oath  to  me.  I  have  taken  the  oath  in  the 
Senate  of  the  United  States — the  very  oath  that  you  are  admin 
istering  ;  I  have  taken  it  in  the  Circuit  Court  of  the  United 
States;  I  have  taken  it  in  the  Supreme  Court  of  the  United 
States;  and  I  am  a  practitioner  in  all  the  Courts  of  the  United 
States  in  nearly  all  the  States  ;  and  it  would  be  a  little  singular 
if  one  who  has  a  right  to  appear  before  the  supreme  judicial 
tribunal  of  the  land,  and  who  has  a  right  to  appear  before  one 
of  the  Legislative  departments  of  the  Government  whose  law 
creates  armies,  and  creates  judges  and  courts-martial,  should 
not  have  a  right  to  appear  before  a  court-martial.  I  have  said 
all  that  I  proposed  to  say." 

The  President  of  the  Court,  who  had  already  made 
himself  a  party  to  this  gross  insult  to  a  distinguished 
counsel — as  if  disappointed  that  the  affair  was  about 
to  end  so  smoothly — here  burst  out : 

"Mr.  Johnson  has  made  an  intimation  in  regard  to  holding 
members  of  this  Court  personally  responsible  for  their  action. 

"  Mr.  Johnson. — I  made  no  such  intimation ;  did  not  intend  it. 

"The  President. — Then  I  shall  say  nothing  more,  sir. 

"Mr.  Johnson. — I  had  no  idea  of  it.  I  said  I  was  too  old  to 
feel  such  things,  if  I  even  would. 

"The  President. —  I  was  going  to  say  that  I  hoped  the  day 
had  passed  when  freemen  from  the  North  were  to  be  bullied 
and  insulted  by  the  humbug  chivalry ;  and  that,  for  my  own 
part,  I  hold  myself  personally  responsible  for  everything  I  do 
here.  The  Court  will  be  cleared." 


HER   TRIAL   AND    EXECUTION.  47 

On  reopening,  the  Judge-Advocate  read  a  paper 
from  General  Harris  withdrawing  his  objection 
because  of  Mr.  Johnson's  disclaimer.  General 
Wallace  remarked  that  it  must  be  known  to  every 
member  of  the  Commission  that  Mr.  Senator  John 
son  had  taken  the  oath  in  the  Senate  of  the  United 
States.  He  therefore  suggested  that  the  requirement 
of  his  taking  the  oath  be  dispensed  with. 

"  The  suggestion  was  acquiesced  in,  nem.  con. 

"  Mr.  Johnson. — I  appear,  then,  as  counsel  for  Mrs.  Surratt." 

In  reviewing,  at  this  distance  of  time,  the  fore 
going  scene,  it  is  scarcely  possible  to  realize  the  state 
of  mind  of  a  member  of  a  tribunal  claiming  at  least 
to  be  a  court  of  justice,  that  could  prompt  such  an 
onslaught — so  shocking  to  the  universal  expectation 
of  dignity  and  decorum,  not  to  say  absolute  impar 
tiality,  in  a  judge. 

The  interpretation  put  upon  the  letter  of  Reverdy 
Johnson  to  his  constituents  by  Generals  Harris  and 
Hunter  was  the  ordinary,  ill-considered,  second 
hand  version  circulated  by  blind  party  hostility. 
This  is  clearly  shown  by  the  fact  that  the  objection 
of  General  Harris  was  not  founded  upon  a  recent 
perusal  of  the  letter,  but  upon  his  own  recollection 
of  the  impression  it  made  in  his  own  party  circles 
the  year  before. 

When,  on  the  next  Wednesday,  General  Harris, 
having  in  the  meantime  looked  it  up,  presented  a 
copy  of  the  incriminated  opinion,  prefacing  a  request 


48  MARY   E.    SUJRRATT. 

that  it  be  made  a  part  of  the  record  by  the  sneering 
remark  that  u  the  Honorable  gentleman  ought  to  be 
very  thankful  to  me  for  having  made  an  occasion 
for  him  to  disclaim  before  the  country  any  obliquity 
of  intention  in  writing  that  letter ; "  and,  on  the 
suggestion  of  General  Hunter,  the  letter  was  read ; 
every  fair  minded  man  ought  to  have  been  convinced 
that  it  was  open  to  such  a  malign  misconstruction 
only  by  an  unscrupulous  political  enemy. 

But  suppose  for  a  moment  that  their  own  hasty 
and  uncharitable  construction  was  correct,  what 
right — what  color  of  justification — did  that  give 
these  two  military  Judges  to  make  that  letter  of  the 
year  before  the  pretext  for  a  sudden  attack  in  open 
court  upon  such  a  man  as  Reverdy  Johnson,  and  on 
the  consecrated  occasion  of  his  appearing  as  counsel 
for  a  lady  on  trial  for  her  life  ? 

As  to  General  Harris7  argument  that  the  require 
ment  of  an  oath  gave  the  Commission  a  right  to 
inquire  whether  the  written  opinions  of  a  counsel 
chosen  for  a  defendant,  previously  delivered  as  a 
party  leader,  were  of  such  a  character  as  to  render 
him  incompetent  to  take  an  oath  which  the  Supreme 
Court  of  the  United  States  and  the  Senate  of  the 
United  States  had  recognized  his  competency  to 
take ;  why,  it  is  charitable  to  suppose — and  his  sub 
sequent  withdrawal  of  his  objection,  notwithstanding 
he  still  insisted  upon  his  construction,  leads  to  that 
conclusion — that  the  zealous  General  did  not  seri 
ously  believe  it  himself.  Certain  it  is,  that  such  a 


HER   TRIAL    AND    EXECUTION.  49 

claim  would  have  been  scouted  as  preposterous  in 
any  law-court  in  the  world. 

With  regard  to  General  Hunter,  his  ferocious 
personal  defiance,  hurled  from  the  very  Bench,  dem 
onstrated  in  a  flash  his  preeminent  unfitness  for  any 
function  that  is  judicial  even  in  a  military  sense. 
It  is  manifest  that  this  whole  attack,  whether  con 
certed  or  not,  was  not  made  from  any  conscientious 
regard  for  the  sanctity  of  an  oath,  nor  from  any 
sensitive  fear  that  Reverdy  Johnson,  as  an  oath- 
breaker,  might  contaminate  the  tribunal ;  but  it  was 
either  a  mere  empty  ebullition  of  party  spleen,  or  of 
party  hatred  towards  a  distinguished  democrat,  or 
it  was  made  with  a  deliberate  design  to  rob  a  poor 
woman  of  any  probable  advantage  such  eminent 
counsel  might  procure  for  her. 

And  whether  the  latter  terrible  suspicion  be  well 
founded  or  not,  true  it  is  that  this  cruel  result,  not 
withstanding  the  withdrawal  of  the  objection,  did 
not  fail  of  full  accomplishment. 

Reverdy  Johnson,  though  suffered  to  appear  as 
counsel,  was  virtually  out  of  the  case.  He  was 
present  only  at  rare  intervals  during  the  trial,  and 
sent  in  his  final  argument  to  be  read  by  one  of  his 
juniors.  The  Court  had  put  its  brand  upon  him, 
and  to  any  subsequent  effort  of  his  it  turned  an 
indifferent  countenance  and  a  deaf  ear.  He,  for 
sooth,  had  "  sympathized  "  with  the  Rebellion  and 
that  was  enough  !  His  appearance  worked  only 
harm  to  his  client,  if  harm  could  be  done  to  one 
4 


50  MARY    E.    SUKRATT. 

whom  the  Court  believed  to  have  been  also  a  sympa 
thizer  with  rebellion,  and  who  was  already  doomed 
to  suffer  in  the  place  of  her  uncaptured  son. 

Another  incident,  occurring  after  the  testimony 
on  behalf  of  the  prisoners  had  begun,  will  illustrate 
still  more  clearly,  if  possible,  the  mental  attitude  of 
(he  Court. 

Among  the  witnesses  sworn  on  the  first  day  of  the 
trial  in  secret  session  was  one  Von  Steinacker,  who, 
according  to  his  own  statement,  had  been  in  the 
Confederate  Army,  on  the  staff  of  Major-General 
Edward  Johnson.  He  told  the  usual  cock-and-bull 
story  about  seeing  Booth  in  Virginia,  in  1863,  con 
sorting  with  the  rebel  officers  and  concocting  the 
assassination  of  Lincoln.  At  the  time  of  his  exami 
nation  he  was  a  prisoner  of  war,  but  after  he  had 
given  his  testimony  he  was  discharged.  The  counsel 
for  the  defense  knowing  nothing  of  the  witness  did 
not  cross-examine  him  at  all.  But,  subsequently, 
they  discovered  that,  after  having  once  been  con 
victed  of  an  attempt  to  desert,  he  had  at  last 
succeeded  in  deserting  the  Union  Army,  and  had 
entered  the  service  of  the  Confederates  ;  that  he  had 
been  convicted  of  theft  by  a  court-martial ;  and  that 
his  whole  story  was  a  fiction.  Thereupon,  as  soon 
as  possible,  the  counsel  for  Mrs.  Surratt  applied  for 
the  recall  of  the  witness  for  cross-examination,  so  as 
to  lay  the  basis  for  his  contradiction  and  impeach 
ment  ;  and  they  embodied  the  facts  they  were  ready 
to  prove  in  a  paper  which  was  signed  by  Reverdy 


HER   TRIAL   AND    EXECUTION.  51 

Johnson  and  the  other  counsel  for  Mrs.  Surratt. 
This  application  seems  to  have  strangely  disturbed 
the  Judge-Advocates  and  aroused  the  ire  of  the 
Court.  The  prosecuting  officers  professed  to  have 
no  knowledge  of  the  whereabouts  of  the  witness ; 
and  General  Wallace,  moved  from  his  wonted  pro 
priety,  delivered  himself  as  follows  : 

"  I,  for  my  part,  object  to  the  appearance  of  any  such  paper 
on  the  record,  and  wish  to  say  now  that  I  understand  distinctly 
and  hold  in  supreme  contempt,  such  practices  as  this.  It  is 
very  discreditable  to  the  parties  concerned,  to  the  attorneys, 
and,  if  permitted,  in  my  judgment  will  be  discreditable  to  the 
Court." 

Mr.  Clampitt,  with  the  most  obsequious  deference 
to  the  Court,  deprecated  any  such  reflection  upon  the 
conduct  of  counsel  and  alluded  to  their  duty  to  their 
unfortunate  clients.  But  this  humble  apology  was 
declared  not  satisfactory  to  the  General  or  to  the 
Court ;  and  the  application  was  not  only  refused  but 
the  paper  was  not  allowed  to  go  upon  the  record. 
However,  this  summary  method  of  keeping  facts  out 
of  sight  availed  nothing.  Mrs.  Surratt's  counsel  had 
caused  to  be  summoned  as  a  witness,  to  contradict 
and  impeach  Von  Steinacker,  Edward  Johnson,  the 
very  Major-General  on  whose  staff  the  witness  had 
sworn  he  had  been. 

General  Johnson,  a  distinguished  officer  in  the 
Confederate  Army,  was  taken  prisoner  in  1864  and 
had  been  in  confinement  since,  as  such,  at  Fort 
Warren.  From  thence  he  had  been  brought  to 


52  MARY   E.    SURRATT. 

attend  before  the  Commission  in  obedience  to  a 
subpoena  issued  by  the  Court. 

On  the  30th  of  May,  he  was  called  as  a  witness 
and  appeared  upon  the  stand  to  be  sworn.  As  he 
stood  there,  in  his  faded  uniform,  bearing,  doubtless, 
traces  of  the  six  nionths'  imprisonment  from  which 
he  had  come  at  the  command  of  the  Court,  facing 
the  officers  of  the  Army  he  had  so  often  encountered, 
and  with  his  back  turned  upon  the  woman  on  whose 
behalf  he  had  been  summoned ;  General  Albion  P. 
Howe  deemed  it  his  duty  as  an  impartial  judge  to 
make  the  following  attack  upon  him. 

After  stating  that  it  was  well  known  that  "  the 
person  "  before  the  Court  had  been  educated  at  the 
National  Military  Academy,  and  had  since  for  many 
years  held  a  commission  in  the  U.  S.  Army,  and  had 
therefore  taken  the  oath  of  allegiance,  this  gallant 
officer  and  upright  judge  proceeded  : 

"In  1861,  it  became  my  duty  as  an  officer  to  fire  upon  a  rebel 
party,  of  which  this  man  was  a  member,  and  that  party  fired 
upon,  struck  down,  and  killed  loyal  men  that  were  in  the  service 
of  the  Government.  1  understand  that  he  is  brought  here  now 
as  a  witness  to  testify  before  this  Court,  and  he  comes  here  as  a 
witness  with  his  hands  red  with  the  blood  of  his  loyal  country 
men,  shed  by  him  or  by  his  assistants,  in  violation  of  his  solemn 
oath  as  a  man  and  his  faith  as  an  officer.  I  submit  to  this  Court 
that  he  stands  in  the  eye  of  the  law  as  an  incompetent  witness, 
because  he  is  notoriously  infamous.  To  offer  as  a  witness  a  man 
who  stands  with  this  character,  who  has  openly  violated  the 
obligations  of  his  oath,  and  his  faith  as  an  officer,  and  to  ad 
minister  the  oath  to  him  and  present  his  testimony,  is  but  an 
insult  to  the  Court  and  an  outrage  upon  the  administration  of 


HER   TRIAL   AND   EXECUTION.  53 

justice.  I  move  that  this  man,  Edward  Johnson,  be  ejected 
from  the  Court  as  an  incompetent  witness  on  account  of  his 
notorious  infamy  on  the  grounds  I  have  stated." 

General  Ekin  welcomed  the  opportunity  to  dis 
tinguish  himself  by  seconding  the  motion  and  char 
acterizing  the  appearance  of  the  witness  before  the 
Commission,  "  with  such  a  character  "  as  "the  height 
of  impertinence  !  "  In  his  haste  to  insult  a  fallen 
foe,  he  seems  to  have  forgotten  that  the  witness  had 
no  alternative  but  to  come. 

The  counsel  for  the  prisoner  humbly  reminded 
the  Court  that  the  prosecution  itself  had  sworn  as 
its  own  witnesses  men  who  had  borne  arms  against 
the  Government.  The  Judge-Advocate  saw  that 
the  members  of  the  Court  had  gone  too  far,  and, 
after  calling  their  attention  to  the  familiar  rule  that 
the  record  of  conviction  in  a  judicial  proceeding  was 
the  only  basis  of  a  total  rejection  of  a  witness,  pro 
ceeded  to  provide  a  channel  for  the  relief  of  the 
Court  by  suggesting  that  they  could  discredit  the 
witness  upon  the  ground  stated,  although  they  could 
not  declare  him  incompetent  to  testify. 

The  assertion  is  confidently  made  that  in  the 
whole  annals  of  English  criminal  jurisprudence,  full 
as  they  are  of  instances  of  the  grossest  unfairness  to 
persons  on  trial,  no  such  outrage  upon  the  adminis 
tration  of  justice  as  the  foregoing  can  be  found.  To 
find  its  parallel  you  must  go  to  the  records  of  the 
French  Revolutionary  Tribunal.  What  are  we  to 


54  MARY   E.   SUKRATT. 

think  of  the  complaint  of  a  Union  General,  that  "a 
rebel  party  "  fired  (first?  No!  but  that  when  "it 
became  his  duty  as  an  officer  to  fire  upon  a  rebel 
party  "  the  rebel  party  fired)  back  ?  What  in  Mars' 
name  did  this  warrior  expect?  Would  he  have  had 
kinder  feelings  towards  his  brave  adversary  if,  in 
response  to  his  own  volley,  the  Confederate  General 
had  tamely  laid  down  his  arms,  or  played  the  coward 
and  run  ? 

Nowadays,  when  the  blue  and  the  gray  meet, 
charges  of  infamy  are  no  longer  heard,  but  the  more 
deadly  the  past  warfare,  the  greater  the  reciprocal 
respect. 

However,  this  unprovoked  assault  upon  an  unof 
fending  officer,  powerless  to  repel  it,  although  it  did 
not  result  in  his  ejection  from  the  Court,  effectually 
disposed  of  General  Johnson  as  a  witness. 

In  answer  to  the  questions  of  counsel  he  calmly 
gave  his  testimony,  which  exploded  both  Von- 
Steinacker  and  his  story.  Judge  Bingham  confined 
his  cross-examination  to  eliciting  the  facts,  that  the 
witness  had  graduated  from  West  Point,  served  in 
the  U.  S.  Army  until  1861,  resigned,  and  joined  the 
Confederate  Army.  The  Court  paid  no  attention 
to  his  direct  testimony  because  he  had  fired  upon 
Union  men  when  they  had  fired  upon  him. 

The  foregoing  incidents  conclusively  show  (were 
any  such  demonstration  necessary)  that  a  Board  of 
nine  military  officers,  fresh  from  service  in  the  field 
in  a  bloody  civil  war,  with  all  the  fierce  prejudices 


HER   TRIAL   AND    EXECUTION.  55 

naturally  bred  by  such  a  conflict  hot  within  their 
bosoms,  was  the  most  unfit  tribunal  possible  to  ad 
minister  impartial  justice  to  eight  persons  charged 
with  the  murder  of  the  Commander-in-Chief  of  the 
Army  to  which  every  member  of  the  Court  belonged, 
committed  in  aid  of  that  .Rebellion  which  during 
four  years  of  hard  fighting  they  had  helped  to 
suppress. 


CHAPTER   III. 
THE  CONDUCT  OF  THE  TRIAL. 

THE  whole  conduct  of  the  trial  emphasizes 
this  conclusion.  The  Court,  in  weighing 
the  evidence,  adopted  and  acted  upon  the  following 
proposition  ;  that  any  witness,  sworn  for  any  of 
the  prisoners,  who  had  enlisted  in  the  Confederate 
service,  or  had  at  any  time  expressed  secession  senti 
ments,  or  sympathized  in  any  way  with  the  South, 
was  totally  unworthy  of  credit.  The  Court  went  a 
step  farther,  and  adopted  the  monstrous  rule  that 
participation  in  the  Rebellion  was  evidence  of  par 
ticipation  in  the  assassination  !  This  assertion  now 
seems  incredible,  but  it  is  fully  attested  by  the  record. 
At  one  stage  of  the  trial,  the  Judge- Advocate  asked 
a  witness  whether  or  not  the  prisoner  Arnold  had 
been  in  the  military  service  of  the  rebels.  General 
Ewing,  his  counsel,  strenuously  objected  to  this 
question  on  the  ground,  that  it  tended  to  prove  the 
prisoner  guilty  of  another  crime  than  the  one  for 
which  he  was  on  trial,  and  thus  to  prejudice  him  in 
the  eyes  of  the  Court. 
56 


HER   TRIAL   AND    EXECUTION.  57 

Judge  Holt  remarked  :  "  How  kindred  to  each 
other  are  the  crimes  of  treason  against  a  nation  and 
assassination  of  its  chief  magistrate. 

"  The  murder  of  the  President  *  *  *  was  pre 
eminently  a  political  assassination. 

"  When,  therefore,  we  shall  show,  on  the  part  of 
the  accused,  acts  of  intense  disloyalty,  bearing  arms 
in  the  field  against  the  Government,  we  show  with 
him  the  presence  of  an  animus  towards  the  Govern 
ment  which  relieves  this  accusation  of  much,  if  not 
all,  of  its  improbability." 

He  asserted  that  such  a  course  of  proof  was  con 
stantly  resorted  to  in  criminal  courts;  and  when 
General  Ewing  challenged  him  (as  well  he  might) 
to  produce  any  authorities  for  such  a  position,  he 
called  upon  the  indomitable  Bingham  to  state  them. 

The  Special  Judge-Advocate  responded,  but  he 
courteously,  but  unmistakably,  shied  away  from  his 
colleague's  position  and  put  the  competency  of  the 
testimony  upon  another  ground,  viz  :  that  where  the 
intent  with  which  a  thing  was  done  is  in  issue,  other 
acts  of  the  prisoner  which  tend  to  prove  the  intent 
may  be  given  in  evidence.  Here  he  was  dealing 
with  a  familiar  principle,  and  could  cite  any  number 
of  cases.  He  then  proceeded  to  apply  his  good  law. 
How?  By  claiming  that  conspiracy  to  murder  hav 
ing  been  laid  in  the  charge,  "  with  the  intent  to  aid 
the  Rebellion"  that  was  the  intent  in  issue  here,  and 
therefore  to  prove  that  a  man  was  in  the  Rebellion 
went  to  prove  that  intent. 


58  MARY    E.    SURRATT. 

At  the  request  of  General  Ewing  he  read  the 
allegation  which  ran  "  in  aid  of  the  Rebellion,"  and 
not  "with  intent  to  aid/7  and  the  counsel  pointed  out 
that  that  was  "  an  allegation  of  fact,  and  not  of  in 
tent;"  but  the  Judge  insisted  that  it  was  in  effect 
an  allegation  of  intent — implied  if  not  expressed. 

General  Ewing  then  replied  to  his  adversary's 
argument  by  showing  that  such  an  allegation  was 
an  unnecessary  allegation.  Conspiracy  to  murder 
and  attempted  murder  were  crimes  done  with  intent 
to  kill;  and  it  was  a  matter  of  no  moment  in  plead 
ing  to  allege  a  general  intent  to  aid  the  Rebellion. 
Courts  had  no  right  to  violate  the  laws  of  evidence 
because  the  prosecution  has  seen  fit  to  violate  the 
laws  of  pleading. 

Judge  Bingham  contended  (and  cited  authorities) 
for  his  familiar  law,  and  then  again  in  applying  it 
triumphantly  asked  : 

"  When  he  [Arnold]  entered  it  (i.  e.,  the  Rebel 
lion)  he  entered  into  it  to  aid  it,  did  he  not?" 

"  Mr.  Ewing.  He  did  not  enter  into  that  to 
assassinate  the  President." 

At  this,  the  Assistant  Judge-Advocate  rising  to 
the  decisive  and  culminating  point  of  his  argument 
gave  utterance  to  the  following  proposition : 

'•Yes:  he  entered  into  it  to  assassinate  the  President;  and 
everybody  else  that  entered  into  the  Rebellion  entered  into  it 
to  assassinate  everybody  that  represented  the  Government,  that 
either  followed  the  standard  in  the  field,  or  represented  its 
standard  in  the  counsels.  That  is  exactly  why  it  is  germane." 


HER  TRIAL   AND   EXECUTION.  59 

And,  thereupon,  the  Commission  immediately 
overruled  the  objection.  General  Ewing  told  the 
exact  truth,  without  a  particle  of  rhetorical  exag 
geration,  when,  in  the  closing  sentence  of  his  argu 
ment  against  the  jurisdiction  of  the  Commission,  he 
exclaimed  : 

"  Indeed,  the  position  taken  by  the  learned  Assist 
ant  Judge- Advocate  *  *  *  goes  to  this — and  even 
beyond  it — namely,  that  participation  in  the  Rebel 
lion  was  participation  in  the  assassination,  and  that 
the  Rebellion  itself  formed  part  of  the  conspiracy 
for  which  these  men  are  on  trial  here." 

Throughout  the  whole  trial,  the  Commission  took 
the  law  from  the  Judge-Advocates  with  the  un 
questioning  docility  usually  manifested  by  a  jury 
on  such  matters  in  civil  courts.  In  truth,  the  main 
function  of  a  Judge- Advocate  appears  to  be  to  fur 
nish  law  to  the  Court,  as  in  civil  courts  the  main 
function  of  the  Judge  is  to  furnish  law  to  the  jury. 
Consequently,  his  exposition  of  the  law  on  any 
disputed  point — whether  relative  to  modes  of  pro 
cedure,  or  to  the  competency  of  testimony,  or  even 
to  questions  of  jurisdiction — instead  of  standing  on 
the  same  level  with  the  antagonistic  exposition  of 
counsel  for  the  accused  as  an  argument  to  be  weighed 
by  the  Court  against  its  opposite  in  the  equal  scales 
of  decision,  was  at  all  times  authoritative,  like  the 
opinion  of  a  judge  overruling  the  contention  of  a 
lawyer.  This,  surely,  was  bad  enough  for  a  defend 
ant  ;  but,  what  was  still  more  fatal  to  his  chances 


60  MARY   E.    SURRATT. 

of  fair  dealing,  this  habit  of  domination,  acquiesced 
in  by  the  Court  on  questions  of  law,  had  the  effect 
(as  is  also  seen  in  civil  courts)  of  giving  the  same 
superior  force  to  the  expositions  of  questions  of  fact 
by  the  Judge- Advocate.  And  as  this  office  combined 
the  functions  of  a  prosecuting  officer  with  the  func 
tions  of  a  judge,  there  could  be  no  restraints  of  law, 
custom  or  personal  delicacy,  against  the  enforcement, 
with  all  the  powers  of  reasoning  and  appeal  at  com 
mand,  the  conclusion  of  the  Judge- Advocate  upon 
the  matters  of  fact. 

In  a  word,  the  judgment  of  the  prosecuting  officer 
— the  retained  counsel  for  the  Government,  the 
plaintiff  in  the  action — ruled  with  absolute  sway, 
both  on  the  law  and  on  the  facts,  the  judgment  of 
the  Commission ;  the  members  of  which,  for  that 
matter,  were  also  in  the  pay  of  the  Government. 

It  may,  therefore,  be  readily  anticipated  with  how 
little  impartiality  the  trial  was  conducted. 

Mrs.  Surratt  (as  did  the  rest  of  the  accused)  plead 
to  the  jurisdiction  of  the  Commission  on  the  grounds 
(1)  that  she  was  not  and  had  not  been  in  the  military 
service  of  the  United  States,  and  (2)  that  when  the 
crimes  charged  were  committed  the  civil  courts  were 
open  in  Washington ;  both  of  which  allegations 
were  admitted  and  were  notoriously  true.  What 
ever  might  be  the  indifference  with  which  the  rights 
of  the  men  to  a  constitutional  trial  may  have  been 
viewed,  it  was  so  utterly  incongruous  with  the  spirit 
of  military  jurisprudence  and  so  unprecedented  in 


HER   TRIAL   AND    EXECUTION.  61 

practice  to  try  a  woman  by  court-martial,  that  had 
Mrs.  Surratt  been  alone  before  that  Commission  we 
venture  to  say  those  nine  soldiers  could  not  have 
brought  themselves,  or  allowed  the  Judge-Advocate 
to  bring  them,  to  the  overruling  of  her  plea.  As 
it  was,  however,  the  court-room  was  cleared  of  all 
save  the  members  of  the  Commission  and  the  three 
Judge- Advocates ;  and  after  a  season  of  what  is 
called  "  deliberation  "  (which  meant  the  further  en 
forcement  of  the  opinion  of  the  prosecuting  officers 
upon  the  point  under  discussion,  where  necessary), 
the  court  reopened  and  uthe  Judge- Advocate  an 
nounced  that  the  pleas  *  *  *  had  been  overruled 
by  the  Commission." 

Mrs.  Surratt  (as  did  the  other  prisoners)  then 
asked  for  a  separate  trial ;  a  right  guaranteed  to  her 
in  all  the  civil  courts  of  the  vicinage.  It  was  denied 
to  her,  without  discussion,  as  a  matter  of  course. 

And  yet  no  one  now  can  fail  to  recognize  the 
grievous  disadvantage  under  which  this  one  woman 
labored,  coupled  in  a  single  trial  with  such  culprits 
as  Payne  who  confessed  his  guilt,  and  Herold  who 
was  captured  with  Booth. 

In  fact,  the  scheme  of  trial  contrived  by  the 
Judge- Advocates  on  a  scale  comprehensive  enough 
to  embrace  the  prisoners,  the  Canadian  exiles  and 
the  Confederate  Cabinet,  would  not  wo'rk  on  a  trial 
of  Mrs.  Surratt  alone.  Of  this  pet  plan  they  were 
highly  proud  and  greatly  enamoured.  To  it,  every 
thing — the  rights  of  woman  as  well  as  man ;  con- 


62  MARY    E.    SURE  ATT. 

siderations  of  equity  and  of  common  fairness — must 
be  made  to  give  way. 

To  the  maintenance  of  this  scheme  in  its  integrity, 
they  had  marshalled  the  witnesses,  and  they  guided 
the  Commission  with  a  firm  hand  so  that  not  a  jot 
or  tittle  of  its  symmetry  should  be  marred. 

This  determined  purpose  is  indicated  by  the  start 
ing-point  they  chose  for  the  testimony. 

On  Friday,  the  twelfth,  the  first  witness  was 
sworn,  and  his  name  was  Richard  Montgomery. 
His  testimony,  as  well  as  that  of  the  other  witnesses 
sworn  that  day,  was  taken  in  secret  session,  and  no 
portion  of  it  was  allowed  to  reach  the  public  until 
long  after  the  trial.  It  was  all  directed  to  establish 
the  complicity  of  the  rebel  agents  in  Canada  and 
through  them  the  complicity  of  Jefferson  Davis  and 
other  officers  of  the  "  Confederacy  "  in  the  assassina 
tion.  In  other  words,  this  testimony  was  given 
to  prove  the  guilt,  not  of  the  men  much  less  of  the 
woman  on  trial,  but  of  the  men  included  in  the 
charge  but  not  on  trial ;  and  whom,  as  it  now  ap 
pears,  the  United  States  never  intended  to  try. 

To  connect  the  defunct  Confederacy  in  the  person 
of  its  captive  Chief  with  the  murder  of  the  Presi 
dent  would  throw  a  halo  of  romantic  wickedness 
about  the  crime,  and  chime  in  with  the  prevalent 
hatred  towards  every  human  being  in  any  way  con 
nected  with  the  Rebellion.  . 

This  class  of  testimony  continued  to  be  introduced 
every  now  and  then  during  the  trial — whenever 


HER   TRIAL   AND    EXECUTION.  63 

most  convenient  to  the  prosecution — and  as  often  as 
it  was  given  the  court-room  was  cleared  of  specta 
tors  and  the  session  secret ;  the  isolated  counsel  for 
Mrs.  Surratt,  utterly  at  a  loss  to  imagine  the  con 
nection  of  such  testimony,  given  tinder  such  solemn 
precautions,  with  their  own  client,  and  knowing 
nothing  whatever  of  the  witnesses  themselves,  must 
have  looked  on  in  bewildered  amazement,  and  had 
no  motive  for  cross-examination. 

The  chief  witnesses  who  gave  this  carefully  sup 
pressed  evidence  were  spies  upon  the  rebel  agents  in 
Canada  paid  by  the  United  States,  and,  at  the  same 
time,  spies  upon  the  United  States  paid  by  the  rebel 
agents. 

They  were,  of  course,  ready  to  swear  to  as  many 
conversations  with  these  agents,  both  before  and  after 
the  assassination,  in  which  those  agents  implicated 
themselves  and  the  heads  of  government  at  Kich- 
mond  in  the  most  reckless  manner,  as  the  Judge- 
Advocates  thought  necessary  or  advisable. 

The  head,  parent  and  tutor  of  this  band  of  wit 
nesses  was  a  man  called  Sanford  Conover.  After 
giving  his  testimony  before  the  Commission,  he  went 
to  Canada  and  again  resumed  his  simulated  intimacy 
with  the  Confederates  there,  passing  under  the  name 
of  James  W.  Wallace.  An  unauthorized  version 
of  his  testimony  having  leaked  out  and  appearing 
in  the  newspapers,  he  was  called  to  account  for  it 
by  his  Canadian  friends.  He  then  made  and  pub 
lished  an  affidavit  that  the  person  who  had  given 


64  MARY    E.   SURE  ATT. 

testimony  before  the  Commission  was  not  himself 
but  an  imposter,  and  at  the  same  time  also  published 
an  offer  of  $500  reward  for  the  arrest  of  "  the  in 
famous  and  perjured  scoundrel  who  secretly  per 
sonated  me  under  name  of  Sanford  Conover,  and 
deposed  to  a  tissue  of  falsehood  before  the  military 
Commission  at  Washington." 

Being  reclaimed  by  the  government  from  his 
Canadian  perils,  he  appeared  again  before  the  Court 
after  the  testimony  had  been  closed  and  the  summing 
up  of  all  the  prisoners'  counsel  had  been  completed 
(June  27th) ;  when  he  testified  that  his  affidavit 
had  been  extorted  from  him  by  the  Confederates  in 
Canada  by  threats  of  death  at  the  point  of  a  pistol. 
This  man  Conover  was  subsequently  (in  1867)  tried 
and  convicted  of  perjury  and  sent  to  the  penitentiary ; 
and  with  him  the  whole  structure  of  perjured  testi 
mony,  fabricated  for  reward  by  him  and  Montgomery 
and  their  co-spies,  fell  to  the  ground.  Secretary 
Seward  testified  before  the  Judiciary  Committee  of 
the  House  of  Representatives,  in  1867,  that,  "the 
testimony  of  these  witnesses  was  discredited  and 
destroyed  by  transactions  in  which  Sanford  Conover 
appeared  and  the  evidence  of  the  alleged  complicity 
of  Jefferson  Davis  thereupon  failed." 

But,  at  the  period  of  the  trial,  when  the  passionate 
desire  for  vengeance  was  at  its  height,  any  plausible 
scoundrel,  whose  livelihood  depended  on  the  rewards 
for  wholesale  perjury,  and  who  was  sure  to  be  at 
tracted  to  Washington  by  the  scent  of  his  favorite 


HER  TRIAL   AND   EXECUTION.  65 

game,  was  thrice  welcome  to  the  Bureau  of  Mili 
tary  Justice.  Any  story,  no  matter  how  absurd 
or  incredible,  provided  it  brought  Jefferson  Davis 
within  conjectural  fore-knowledge  of  the  assassi 
nation,  was  greedily  swallowed,  and,  moreover,  was 
rewarded  with  money  and  employment.  These 
harpies  flocked,  like  buzzards,  around  the  doors  of 
the  old  Penitentiary,  and  all — black  and  white, 
from  Richmond,  from  Washington  and  from  Mont 
real — were  eager,  for  a  consideration,  to  swear  that 
Davis  and  Benjamin  were  the  instigators  of  Booth 
and  Surratt.  And  such  testimony  as  it  was  !  For 
the  most  part  the  sheerest  hearsay  !  The  private 
impressions  of  the  witness  !  In  one  instance,  his 
recollection  of  the  contents  of  a  letter  the  witness 
had  heard  read  or  talked  about,  the  signature  of 
which,  although  he  did  not  see  it  himself,  he  heard 
was  the  signature  of  Jefferson  Davis  ! !  Testimony 
wholly  inadmissible  under  the  most  elementary  rules 
of  evidence,  but  swept  before  the  Commission  in 
the  absence  of  counsel  for  the  parties  implicated  and 
under  the  immunity  of  a  secret  session. 

For  example :  a  blind  man,  who  had  been,  at  an 
undated  period  during  the  war,  a  hanger-on  around 
the  camp  at  Richmond,  being  asked  whether  he  had 
heard  any  conversations  among  the  rebel  officers  in 
regard  to  the  contemplated  assassination,  answered  : 

"  In  a  general  way,  I  have  heard  sums  offered,  to  be  paid 
with  a  Confederate  sum,  for  any  person  or  persons  to  go  North 
and  assassinate  the  President." 

5 


66  MAEY    E.    SURE  ATT. 

Being  pressed  to  name  the  amount  and  by  what 
officers,  he  answered : 

"  At  this  moment,  I  cannot  tell  you  the  particular  names  of 
shoulder-straps,  &c. 

"  Q. — Do  you  remember  any  occasion — some  dinner  occasion  ? 

"  A. — I  can  tell  you  this :  I  heard  a  citizen  make  the  remark 
once,  that  he  would  give  from  his  private  purse  $10,000,  in 
addition  to  the  Confederate  amount,  to  have  the  President  assas 
sinated;  to  bring  him  to  Richmond  dead  or  alive,  for  proof. 

"  Q. — I  understood  you  to  say  that  it  was  a  subject  of  general 
conversation  among  the  rebel  officers  ? 

"A. — It  was.  The  rebel  officers,  as  they  would  be  sitting 
around  their  tent  doors,  would  be  conversing  on  such  a  subject 
a  great  deal.  They  would  be  saying  they  would  like  to  see  his 
head  brought  there,  dead  or  alive,  and  they  should  think  it 
could  be  done ;  and  I  have  heard  such  things  stated  as  that 
they  had  certain  persons  undertaking  it." 

In  the  introduction  of  evidence  against  Mrs. 
Surratt,  as  well  as  the  others  on  trial,  the  Judge- 
Advocates  allowed  themselves  the  most  unlimited 
range. 

Narrations  of  all  sorts  of  events  connected  with 
the  progress  of  the  War — historical,  problematical 
or  fabulous — having  no  relevancy  to  the  particular 
charge  against  her,  or  them,  but  deadly  in  their 
tendency  to  steel  the  minds  of  the  Court  against  her, 
were  admitted  without  scruple  or  hesitation. 

Seven  soldiers  who  had  been  prisoners  of  war  at 
Libby  Prison,  Belle  Island  or  Andersonville  were 
called  and  testified,  in  all  its  ghastly  details,  to  the 
terrible  treatment  they  and  their  fellow-prisoners 


HER   TRIAL   AND    EXECUTION.  67 

had  undergone.  Three  witnesses  were  sworn  to 
prove  that  the  rebel  government  buried  a  torpedo 
under  the  centre  of  Libby  Prison,  to  be  fired  if  the 
U.  S.  troops  entered  Richmond.  Letters  found  in 
the  Richmond  Archives  were  read,  offering  to  rid 
the  world  of  the  Confederacy's  deadliest  enemies, 
and  projecting  wholesale  destruction  to  property  in 
the  North.  Testimony  was  allowed  to  be  given  of 
the  burning  of  U.  S.  transports  and  bridges  by  men 
in  the  Confederate  service ;  of  the  raids  from  Canada 
into  the  United  States ;  of  the  alleged  plot  in  all  its 
horrible  features  to  introduce  the  yellow-fever  into 
Northern  cities  by  infected  clothing,  testified  to  by 
the  villain  who  swore  he  did  it  for  money.  It  is 
scarcely  to  be  credited,  yet  it  is  a  fact,  that  the  con 
fession  of  Robert  Kennedy,  hung  in  March  previous 
for  attempting  to  burn  the  City  of  New  York,  was 
read  in  evidence ;  as  was  also  a  letter  from  a  Con 
federate  soldier,  detailing  the  blowing  up  of  vessels 
by  a  torpedo  and  the  killing  of  Union  men  at  City 
Point,  indorsed  by  a  recommendation  of  the  operator 
to  favor. 

On  June  27th,  after  the  testimony  had  been  closed 
and  the  summing  up  of  counsel  for  the  defense 
ended,  the  case  was  reopened  and  there  was  intro 
duced  an  advertisement  clipped  from  the  "Selma 
Dispatch"  of  December  1st,  1864,  wherein  some 
anonymous  lunatic  offered,  if  furnished  §1,000,000, 
to  cause  the  lives  of  Lincoln,  Seward  and  Johnson 
to  be  taken  before  the  first  of  March. 


68  MAEY   E.   SURE  ATT. 

The  prosecution  closed  its  direct  testimony  on 
May  25th,  reserving  the  right  (of  which  we  have 
seen  they  availed  themselves  from  time  to  time) 
thereafter  to  call  further  witnesses  on  the  character 
of  the  Rebellion  and  the  complicity  of  its  leaders  in 
the  assassination. 

Out  of  about  one  hundred  and  fifty  witnesses 
sixty-six  gave  testimony  of  that  kind.  Of  the  re 
maining  eighty-four  about  fifty  testified  to  the  cir 
cumstances  attending  the  assassination,  the  pursuit 
and  capture  of  Booth  and  Herold,  and  the  terrific 
assault  of  Payne  on  William  H.  Seward  and  his 
household.  Of  the  remaining  thirty-four  there  were 
nine  whose  testimony  was  directed  to  the  incrimina- 
tion  of  Mrs.  Surratt. 

The  important  witnesses  against  her  were  three 
soldiers  testifying  under  the  eye  of  their  superior 
officers  as  to  her  non-recognition  of  Payne,  and  two 
informers  who  had  turned  state's  evidence  to  save 
their  own  necks,  who  connected  her  with  Booth. 

The  witnesses  for  the  defense,  for  the  most  part, 
were  treated  by  the  Special  Judge-Advocate  as 
virtual  accomplices  of  the  accused ;  and,  as  soon  as, 
by  a  searching  cross-examination,  he  had  extorted 
from  them  a  reluctant  admission  of  the  slightest 
sympathy  with  the  South  (as  in  almost  every  case 
he  was  able  to  do),  he  swept  them  aside  as  impeached, 
and  their  testimony  as  unworthy  of  a  moment's  con 
sideration.  A  former  slave,  who  announced  himself 
or  herself  as  ready  to  give  evidence  against  his  or 


HER   TRIAL   AND   EXECUTION.  69 

her  former  master,  was  a  delicious  morsel  for  the 
Bureau  of  Military  Justice ;  and  several  such  were 
sworn  for  the  prosecution.  While,  on  the  other 
hand,  nothing  so  exasperated  the  loyal  Bingham  or 
so  astonished  the  Court  as  the  apparition  of  an  old 
slave-woman,  summoned  by  the  defense,  eagerly  en 
deavoring  to  exculpate  her  former  master. 

Several  priests  testified  as  to  the  good  character  of 
Mrs.  Surratt  as  a  lady  and  a  Christian,  but  the  effect 
of  their  testimony  was  immediately  demolished  in 
the  eyes  of  the  Court,  when,  on  cross-examination, 
although  they  refused  to  substantiate  what  the 
Judge- Advocate  called  "  her  notorious  intense  dis 
loyalty,"  they  could  not  remember  that  they  had 
ever  heard  her  "  utter  one  loval  sentiment." 


CHAPTER  IV. 
ARGUMENTS  FOR  THE  DEFENSE. 

THE  testimony  for  the  several  defenses  of  the 
eight  accused  closed  on  the  7th  of  June,  and 
the  testimony  in  rebuttal  ended  on  the  14th,  with  the 
evidence  of  the  physicians  on  the  sanity  of  Payne. 

Thereupon,  General  Ewing  endeavored  to  extract 
from  the  Judge- Advocate  an  answer  to  the  two  fol 
lowing  questions  :  First. — Whether  his  clients  were 
on  trial  for  but  one  crime,  viz. :  Conspiracy,  or  four 
crimes,  viz.  :  Conspiracy,  Murder,  Attempt  at  mur 
der,  Lying  in  wait  ?  and 

Second. — By  what  statute  or  code  of  laws  the 
crimes  of  "traitorously"  murdering,  or  '' traitor 
ously"  assaulting  with  intent  to  kill,  or  "traitor 
ously  "  lying  in  wait,  were  defined,  and  what  was 
the  punishment  affixed  ? 

The  Judge- Advocate's  reply  to  the  first  question 
was,  in  substance,  that  all  the  accused  were  charged 
with  conspiring  to  assassinate  the  President  and  the 
other  members  of  the  Government  named,  and  fur 
ther,  with  having  executed  that  conspiracy  so  far  as 
the  assassination  of  the  President  and  the  assault  on 
the  Secretary  of  State  were  concerned,  and  "  to  have 
70 


HER   TRIAL   AND   EXECUTION.  71 

attempted  its  execution  so  far  as  concerns  the  lying 
in  wait  and  other  matters." 

Assistant  Judge- Advocate  Bingham  added  : 

"The  act  of  any  one  of  the  parties  to  a  conspiracy  in  its 
execution  is  the  act  of  every  party  to  that  conspiracy;  and 
therefore  the  charge  and  specification  that  the  President  was 
murdered  in  pursuance  of  it  by  the  hand  of  Booth,  is  a  direct 
and  unequivocal  charge  that  he  was  murdered  by  every  one  of 
the  parties  to  this  conspiracy,  naming  the  defendants  by  name. 

"  Mr.  Ewing. — I  understand  *  *  *  but  I  renew  my  inquiry, 
whether  these  persons  are  charged  with  the  crime  of  conspiracy 
alone,  and  that  these  acts  of  murdering,  assaulting,  and  lying 
in  wait,  were  merely  acts  done  in  execution  of  that  conspiracy. 

"Mr.  Bingham  (interrupting). — And  not  crimes? 

"  Mr.  Ewing. — Or  whether  they  are  charged  with  four  dis 
tinct  crimes  in  this  one  charge  ? 

'•  Mr.  Bingham. — '  Where  parties  are  indicted  for  a  con 
spiracy,  and  the  execution  thereof,  it  is  but  one  crime  at  the 
common  law.  And  that  as  many  *  *  *  overt  acts  in  the  exe 
cution  of  the  conspiracy  as  they  are  guilty  of,  may  be  laid  in 
the  same  count.' 

"  Mr.  Ewing. — It  is  then,  I  understand,  one  crime  with  which 
they  are  charged. 

"  Mr.  Bingham. — One  crime  all  round,  with  various  parts 
performed. 

"Mr.  Ewing. — The  crime  of  conspiracy. 

"  Mr.  Bingham. — It  is  the  crime  of  murder  as  well.  It  is 
not  simply  conspiring  but  executing  the  conspiracy  treasonably 
and  in  aid  of  the  Rebellion. 

"  Mr.  Ewing. — I  should  like  an  answer  to  my  question,  if  it 
is  to  be  given:  How  many  crimes  are  my  clients  charged  with 
and  being  tried  for  ?  I  cannot  tell. 

"  Mr.  Bingham. — We  have  told  you,  it  is  all  one  transaction." 

General  Ewing,  not  being  able  to  get  an  answer 
intelligible  to  himself   to  the  first  question,  then 


72  MARY   E.   SURRATT. 

respectfully  asked  an  answer  to  the  second :  By 
what  code  or  statute  the  crime  was  defined  and  the 
punishment  provided  ? 

"The  Judge-Advocate. — I  think  the  common  law  of  war  will 
reach  that  case.  This  is  a  crime  which  has  been  committed  in 
the  midst  of  a  great  civil  war,  in  the  capital  of  the  country,  in 
the  camp  of  the  Commander-in-Chief  of  our  armies,  and  if  the 
common  law  of  war  cannot  be  enforced  against  criminals  of  that 
character,  then  I  think  such  a  code  is  in  vain  in  the  world. 

"  Mr.  Ewing. — Do  you  base  it,  then,  only  on  the  law  of 
'nations  ? 

"The  Judge- Advocate. — The  common  law  of  war. 

"Mr.  Ewing. — Is  that  all  the  answer  to  the  question? 

"  The  Judge-Advocate. — It  is  the  one  I  regard  as  perfectly 
appropriate  to  give. 

"Mr.  Ewing. — I  am  as  much  in  the  dark  now  as  to  that  as  I 
was  in  reference  to  the  other  inquiry." 

It  is  significant  that  the  ready  Special  Judge- 
Advocate  rendered'  no  aid  to  his  colleague  on  the 
latter  branch  of  the  inquiry. 

According  to  the  theory  of  the  prosecution,  then, 
Mary  E.  Surratt  was  tried,  as  a  co-conspirator  of 
Jefferson  Davis  and  seven  of  his  agents,  of  the  seven 
men  tried  with  her,  and  of  Booth  and  her  own  son, 
for  the  crime  of  "  traitorous  conspiracy"  to  murder 
the  President,  Vice-President,  Secretary  of  State  and 
Lieutenant-General,  of  the  United  States ;  and  for 
the  following  crimes  committed  in  pursuance  thereof: 

1.  Assassination  of  the  President,  with  Booth. 

2.  Attempt  to  murder  the  Secretary  of  State,  his 
two  sons  and  two  attendants  (five  crimes  instead  of 
one),  with  Payne. 


HER  TRIAL   AND   EXECUTION.  73 

7.  Lying  in  wait  to  kill  the  Vice-President,  with 
Atzerodt. 

8.  Lying  in  wait  to  kill  the  Lieutenant-General, 
with  O'Laughlin. 

Eight  separate  species  of  crimes,  beside  the  generic 
one  of  "  traitorous  conspiracy."  And  she,  a  citizen, 
a  non-combatant,  a  woman,  was  tried  on  this  nine 
fold,  omnibus  charge,  jointly  with  seven  men,  under 
"  the  common  law  of  war  "  I 

On  the  16th  of  June  (Friday),  Mr.  Clampitt  read 
the  argument  of  Reverdy  Johnson  against  the  juris 
diction  of  the  Commission — one  of  the  most  cogent 
and  convincing  ever  delivered  in  a  court  of  justice. 

The  Supreme  Court  of  the  United  States,  subse 
quently  (December,  1866),  in  deciding  the  Milligan 
case,  did  but  little  more  than  reiterate  the  proposi 
tions  maintained  by  this  great  lawyer. 

He  opened  his  address  by  reminding  the  Court 
that  the  question  of  their  jurisdiction  to  try  and 
sentence  the  accused  was  for  the  Court  alone  to  de 
cide,  and  that  no  mandate  of  the  President,  if  in  fact 
and  in  law  the  Constitution  did  not  tolerate  such 
tribunals  in  such  cases,  could  protect  any  member 
of  the  Commission  from  the  consequences  of  his 
illegal  acts.  He  then  advanced  and  proved  the  fol 
lowing  propositions  :  that  none  but  military  offenses 
are  subject  to  the  jurisdiction  of  military  courts,  and 
that  the  offenders  when  they  commit  such  offenses 
must  be  subject  to  military  jurisdiction — in  other 


74  MARY    E.    SURRATT. 

words,  must  belong  to  the  array  or  navy  ;  that  the 
President  himself  had  no  right  to  constitute  military 
courts  of  his  own  motion,  but  that  such  power  must 
first  be  exercised  by  Congress  under  the  constitu 
tional  grant  to  that  body  to  make  rules  for  the 
government  and  regulation  of  the  land  and  naval 
forces ;  that,  by  the  fifth  and  sixth  amendments  of 
the  constitution,  every  person,  except  those  belong 
ing  to  the  land  or  naval  forces  or  to  the  militia  in 
active  service  in  time  of  war,  and,  being  such, 
committing  a  military  or  naval  crime,  is  guaranteed 
an  investigation  by  a  grand  jury  as  a  preliminary 
to  trial,  and  a  speedy  and  public  trial  by  an  im 
partial  jury.  He  then  took  up  and  examined  the 
grounds  on  which  the  jurisdiction  of  the  Commission 
was  sought  to  be  maintained.  Calling  the  Court's 
attention  to  the  constitutional  provision  that,  if  the 
institution  of  such  Commission  was  an  incident  to 
the  war  power,  that  power  was  lodged  exclusively  in 
Congress  and  not  at  all  in  the  President,  and,  there 
fore,  Congress  only  could  authorize  such  tribunals, 
he  showed  that,  neither  by  the  articles  of  war  nor  by 
the  two  acts,  relied  on,  passed  during  the  Rebellion, 
had  Congress  ever  authorized  any  such  tribunal ; 
and  that  a  military  commission  like  the  present  and 
under  present  circumstances  "is  not  to  be  found 
sanctioned,  or  the  most  remotely  recognized,  or  even 
alluded  to,  by  any  writer  on  military  law  in  England 
or  the  United  States,  or  in  any  legislation  of  either 
country." 


HER   TRIAL   AND   EXECUTION.  75 

And,  in  this  connection,  he  pronounced  the  sugges 
tion  that  the  civil  courts  and  juries  of  the  District 
of  Columbia  could  not  safely  be  relied  upon  for  the 
trial  of  these  cases,  "an  unjust  reflection  upon  the 
judges,  upon  the  people,  upon  the  marshal,  an  ap 
pointee  of  the  President,  by  whom  the  juries  were 
summoned,  and  upon  our  civil  institutions  them 
selves  ; "  and  he  closed  his  remarks  upon  this  branch 
of  his  subject  by  saying  that  the  foregoing  suggestion, 

"  upon  another  ground,  is  equally  without  force.  It  rests  on 
the  idea  that  the  guilty  only  are  ever  brought  to  trial ;  that 
the  only  object  of  the  Constitution  and  laws  in  this  regard  is  to 
afford  the  means  to  establish  alleged  guilt;  that  accusation, 
however  made,  is  to  be  esteemed  prima  facie  evidence  of  guilt, 
and  that  the  Executive  should  be  armed,  without  other  restric 
tion  than  his  own  discretion,  with  all  the  appliances  deemed  by 
him  necessary  to  make  the  presumption  from  such  evidence  con 
clusive.  Never  was  there  a  more  dangerous  theory.  The  peril 
to  the  citizen  from  a  prosecution  so  conducted,  as  illustrated  in 
all  history,  is  so  great  that  the  very  elementary  principles  of 
constitutional  liberty,  the  spirit  and  letter  of  the  Constitution 
itself  repudiated  it." 

After  depicting  the  peril  to  the  rights  of  the  citi 
zen  of  confiding  to  the  option  of  the  Executive  the 
power  of  substituting  a  secret  for  a  public  tribunal 
for  the  trial  of  offenses,  he  established  the  following 
propositions:  That  the  creation  of  a  Court  is  an 
exclusively  legislative  function  ;  that  constitutional 
guarantees  are  designed  for  times  of  war  as  well  as 
times  of  peace ;  that  the  power  to  suspend  the  writ 
of  Habeas  Corpus  carries  with  it  only  the  temporary 


76  MARY   E.   SURRATT. 

suspension  of  the  right  to  inquire  into  the  cause  of 
the  arrest,  and  does  not  extend  in  any  way  over  the 
other  rights  of  the  accused.  The  distinguished  ad 
vocate  then  further  maintained  that,  conceding  the 
articles  of  war  provide  for  a  military  court  like  this, 
yet  the  offense  charged  in  the  present  case  being 
nothing  less  than  treason  could  not  under  the  pro 
vision  of  the  constitution,  regulating  the  trial  of 
treason,  be  tried  by  a  military  commission ;  and, 
also,  that  under  the  articles  of  war  persons  who  were 
not  and  never  had  been  in  the  army  were  not  subject 
to  military  law.  And,  in  order  to  illustrate  this 
branch  of  his  argument  as  forcibly  as  possible, 
passing  in  review  the  guaranteed  and  historic  rights 
of  accused  persons  on  trials  before  civil  courts,  he 
arrayed  the  open  and  flagrant  violations  of  these 
rights  which  had  been  permitted  by  the  Commis 
sion  on  the  present  trial :  First,  in  the  character  of 
the  pleadings,  which  for  indefiniteness  and  duplicity 
would  not  have  been  tolerated  by  any  civil  tribunal. 
Second,  as  to  the  rules  of  evidence,  which,  according 
to  the  Judge-Advocate,  allowed  proof  of  separate 
and  distinct  offenses  alleged  to  have  been  committed, 
not  only  by  the  parties  on  trial,  but  by  other  persons, 
and  which  the  accused,  however  innocent,  could  not 
be  supposed  able  to  meet.  Third,  he  quoted  Lord 
Holt  to  show  that  in  a  civil  court  "these  parties 
could  not  have  been  legally  fettered  during  their 
trial."  Referring  to  the  row  of  miserable  beings 
weighed  down  with  shackles  as  they  had  entered 


HER   TRIAL   AND   EXECUTION.  77 

the  court-room,  as  they  confronted  their  epauletted 
judges,  and  as  they  departed  to  their  solitary  cells, 
day  by  day,  for  more  than  a  month,  he  repeated  the 
words  of  the  great  jurist,  then  200  years  old  : 

"  Hearing  the  clanking  of  chains,  though  no  complaint  was 
made  to  him,  he  said,  'I  should  like  to  know  why  the  prisoner 
is  brought  in  ironed.  Let  them  be  instantly  knocked  off. 
When  prisoners  are  tried  they  should  stand  at  their  ease.' " 

Then,  characterizing  the  claim,  that  martial  law 
prevailing  in  the  District  of  Columbia  therefore 
warranted  the  Commission,  as  alike  indefensible  and 
dangerous,  and  at  the  same  time  irrelevant  because 
martial  law  had  never  been  proclaimed  and  the  civil 
courts  were  in  the  full  and  undisturbed  exercise  of 
all  their  functions,  the  counsel  drove  this  point  home 
as  follows  : 

"  We  learn,  and  the  fact  is  doubtless  true,  that  one  of  the 
parties,  the  very  chief  of  the  alleged  conspiracy,  has  been  in 
dicted,  and  is  about  to  be  tried  before  one  of  those  courts.  If 
he,  the  alleged  head  and  front  of  the  conspiracy,  is  to  be  and 
can  be  so  tried,  upon  what  ground  of  right,  of  fairness  or  of 
policy,  can  the  parties  who  are  charged  to  have  been  his  mere 
instruments  be  deprived  of  the  same  mode  of  trial  ?" 

At  the  close  of  his  speech  he  recurs  to  the  warning 
that  the  President's  command  can  furnish  no  justi 
fication  to  the  members  of  the  tribunal.  If  their 
function  were  only  to  act  as  aides  to  the  President  to 
enable  him  to  discharge  his  prerogative  of  punish 
ment,  and  is  to  that  extent  legal,  then  it  is  only  so 


78  MARY   E.    SURE  ATT. 

because  the  President  might  have  dispensed  with  the 
Court  altogether,  and  ordered  the  punishment  of  the 
culprits  without  any  formal  trial. 

No,  he  warned  them,  in  the  most  courtly  and 
courteous  manner,  they  could  not  shield  themselves 
behind  the  President. 

"Responsibility  to  personal  danger  can  never  alarm  soldiers 
who  have  faced  *  *  *  death  on  the  battle-field.  But  there  is 
a  responsibility  that  every  gentleman,  be  he  soldier  or  citizen, 
will  constantly  hold  before  him  and  make  him  ponder — re 
sponsibility  to  the  constitution  and  laws  of  his  country  and  an 
intelligent  public  opinion — and  prevent  his  doing  anything 
knowingly  that  can  justly  subject  him  to  the  censure  of  either. 
I  have  said  that  your  responsibility  is  great.  If  the  Commission 
under  which  you  act  is  void  and  confers  no  authority,  whatever 
you  may  do  may  involve  the  most  serious  personal  liability." 

He  then  cited  the  case  of  Governor  Wall,  hung  in 
London  in  1802  for  murder — a  soldier,  under  his 
government  in  the  island  of  Goree,  having  been 
whipped  to  death  by  sentence  of  a  regimental  court- 
martial,  twenty  years  before. 

"In  that  instance  want  of  jurisdiction  in  the  court-martial 
was  held  to  be  fatal  to  its  judgment  as  a  defense  for  the  death 
that  ensued  under  it.  In  this,  if  the  Commission  has  no  juris 
diction,  its  judgment  for  the  same  reason  will  be  of  no  avail, 
either  to  Judges,  Secretary  of  War,  or  President,  if  either  shall 
be  called  to  a  responsibility  for  what  may  be  done  under  it." 

The  learned  counsel  then  added : 

"The  opinion  I  have  endeavored  to  maintain  is  believed  to 
be  the  almost  unanimous  opinion  of  the  profession  and  certainly 
is  of  every  judge  or  court  who  has  expressed  any." 


HER  TRIAL   AND   EXECUTION.  79 

And  he  cited  the  then  recent  charge  of  Judge 
Bond  to  the  grand  jury  at  Baltimore,  in  which  the 
Judge  declared  in  reference  to  such  military  com 
missions  as  the  present,  that, 

"Such  persons  exercising  such  unlawful  jurisdiction  are 
liable  to  indictment  by  you  as  well  as  responsible  in  civil 
actions  to  the  parties." 

And  he  quoted  to  the  Court  that  portion  of  the 
charge  of  Judge  Rufus  W.  Peckham  to  a  grand 
jury  in  New  York  City,  delivered  during  the  prog 
ress  of  this  very  trial,  wherein  the  right  of  a  military 
commission  to  try  was  denied  : 

"  A  great  crime  has  lately  been  committed  that  has  shocked 
the  civilized  world.  Every  right-minded  man  desires  the 
punishment  of  the  criminals,  but  he  desires  that  punishment 
to  be  administered  according  to  law,  and  through  the  judicial 
tribunals  of  the  country.  No  star-chamber  court,  no  secret 
inquisition,  in  this  nineteenth  century,  can  ever  be  made  ac 
ceptable  to  the  American  mind. 

*•*###*•** 

"Grave  doubts,  to  say  the  least,  exist  in  the  minds  of  intel 
ligent  men,  as  to  the  constitutional  right  of  the  Military  Com 
mission  at  Washington  to  sit  in  judgment  upon  the  prisoners 
now  on  trial  for  their  lives  before  that  tribunal.  Thoughtful 
men  feel  aggrieved  that  such  a  commission  should  be  established 
in  this  free  country,  when  the  war  is  over,  and  when  the  com 
mon  law  courts  are  open  and  accessible  to  administer  justice 
according  to  law,  without  fear  or  favor.  *  *  * 

"The  unanimity  with  which  the  leading  press  of  our  land 
has  condemned  this  mode  of  trial  ought  to  be  gratifying  to 
every  patriot." 


80  MARY   E.   STJKRATT. 

On  the  twenty-third,  General  Ewing,  too,  assailed 
the  jurisdiction  of  the  Court  in  a  short  but  powerful 
speech  from  which  are  taken  the  following  extracts : 

"The  jurisdiction  of  the  Commission  has  to  be  sought  dehora 
the  Constitution,  and  against  its  express  prohibition.  It  is, 
therefore,  at  least  of  doubtful  validity,  If  that  jurisdiction  do 
not  exist;  if  the  doubt  be  resolved  against  it  by  our  judicial 
tribunals,  when  the  law  shall  again  speak,  the  form  of  trial  by 
this  unauthorized  Commission  cannot  be  pleaded  in  justification 
of  the  seizure  of  property  or  the  arrest  of  persons,  much  less 
the  infliction  of  the  death  penalty.  In  that  event,  however 
fully  the  recorded  evidence  may  sustain  your  findings,  however 
moderate  may  seem  your  sentences,  however  favorable  to  the 
accused  your  rulings  on  the  evidence,  your  sentence  will  be  held 
in  law  no  better  than  the  rulings  of  Judge  Lynch' s  courts  in  the 
administration  of  lynch  law. 

uOur  judicial  tribunals,  at  some  future  day  *  *  *  will  be 
again  in  the  full  exercise  of  their  constitutional  powers,  and 
may  think,  as  a  large  proportion  of  the  legal  profession  think 
now,  that  your  jurisdiction  in  these  cases  is  an  unwarranted 
assumption ;  and  they  may  treat  the  judgment  which  you  pro 
nounce  and  the  sentence  you  cause  to  be  executed,  as  your  own 
unauthorized  acts. 

"  Conviction  may  be  easier  and  more  certain  in  this  Military 
Commission,  than  in  our  constitutional  courts.  Inexperienced 
as  most  of  you  are  in  judicial  investigation,  you  can  admit  evi 
dence  which  the  courts  would  reject,  and  reject  what  they  would 
admit,  and  you  may  convict  and  sentence  on  evidence  which 
those  courts  would  hold  to  be  wholly  insufficient.  Means,  too, 
may  be  resorted  to  by  detectives,  acting  under  promise  or  hope 
of  reward,  and  operating  on  the  fears  or  the  cupidity  of  wit 
nesses,  to  obtain  and  introduce  evidence,  which  cannot  be 
detected  and  exposed  in  this  military  trial,  but  could  be  readily 
in  the  free,  but  guarded,  course  of  investigation  before  our 
regular  judicial  tribunals.  The  Judge-Advocate,  with  whom 
chiefly  rests  the  fate  of  these  citizens,  is  learned  in  the  law, 


HER   TKIAL   AND   EXECUTION.  81 

but  from  his  position  he  can  not  be  an  impartial  judge,  unless 
he  be  more  than  a  man.  He  is  the  prosecutor  in  the  most  ex 
tended  sense  of  the  word.  As  in  duty  bound,  before  this  court 
was  called,  he  received  the  reports  of  detectives,  pre-examined 
the  witnesses,  prepared  and  officially  signed  the  charges,  and, 
as  principal  counsel  for  the  Government,  controlled  on  the  trial 
the  presentation,  admission  and  rejection  of  evidence.  In  our 
courts  of  law,  a  lawyer  who  has  heard  his  client's  story,  if 
transferred  from  the  bar  to  the  bench,  may  not  sit  in  the  trial 
of  the  cause,  lest  the  ermine  be  sullied  through  the  partiality 
of  counsel.  This  is  no  mere  theoretical  objection — for  the 
union  of  prosecutor  and  judge  works  practical  injustice  to  the 
accused.  The  Judge-Advocate  controls  the  admission  and  re 
jection  of  evidence — knows  what  will  aid  and  what  will  injure 
the  case  of  the  prosecution,  and  inclines  favorably  to  the  one 
and  unfavorably  to  the  other.  The  defense  is  met  with  a  bias 
of  feeling  and  opinion  on  the  part  of  the  judge  who  controls 
the  proceedings  of  the  Court,  and  on  whom,  in  great  measure, 
the  fate  of  the  accused  depends,  which  morals  and  law  alike 
reject." 

Whatsoever  else  may  be  pleaded  in  excuse  or  pal 
liation  of  the  acts  of  the  Commission,  it  can  never 
be  said  that  its  members  were  driven  on  by  an  over 
powering  sense  of  their  duty  as  soldiers,  in  blind 
ignorance  of  the  Constitution  and  the  law.  Each 
and  every  officer  was  made  fully  aware  of  his  awful 
responsibility  and  apprized  of  the  precarious  footing 
of  his  authority. 


CHAPTER  V. 
CHARGE  OF  JUDGE  BINGHAM. 

PROM  the  sixteenth  to  the  twenty-seventh  of 
June  the  time  was  consumed  by  the  summing 
up  of  the  several  counsel  for  the  prisoners  on  the 
facts  discjosed  by  the  evidence  ;  and  on  the  last  men 
tioned  day  and  the  succeeding  one,  Special  Judge- 
Advocate  Bingham  delivered  his  address  in  answer 
to  all  the  foregoing  pleas,  both  as  to  the  jurisdiction 
of  the  Court  and  also  as  to  the  merits  of  the  case. 

This  long,  carefully  prepared  and  yet  impassioned 
speech  may  be  fairly  considered  as  embodying  the 
very  proof-charge  of  the  prosecution.  Indeed,  under 
the  rules  of  military  procedure,  it  occupies  the  place 
and  performs  the  functions  of  the  judge's  charge  in 
the  common-law  courts.  As  such,  it  deserves  a 
closer  analysis  and  a  more  extended  examination 
than  can  be  given  to  it  here.  The  briefest  and  most 
cursory  review,  however,  will  suffice  to  show  its  tone 
and  temper. 

After  a  solemn  asseveration  of  his  desire  to  be 

just  to  the  accused,  and  a  warning  to  the  Court  that 

"a  wrongful  and  illegal  conviction  or  a  wrongful  and 

illegal  acquittal  *  *  *  would  impair  somewhat  the 

82 


HER   TRIAL   AND    EXECUTION.  83 

security  of  every  man's  life  and  shake  the  stability 
of  the  Republic,"  the  learned  advocate  specifically 
declares,  that  the  charge  "  is  not  simply  the  crime 
of  murdering  a  human  being"  but  a  "combination 
of  atrocities,"  committed  as  charged  upon  the  record, 
"  in  pursuance  of  a  treasonable  conspiracy  entered 
into  by  the  accused  with  one  John  Wilkes  Booth, 
and  John  H.  Surratt,  upon  the  instigation  of  Jef 
ferson  Davis,  Jacob  Thompson,  George  N.  Sanders 
and  others,  with  intent  thereby  to  aid  the  existing 
rebellion  and  subvert  the  constitution  and  laws  of 
the  United  States." 

A  denunciation  of  the  Rebellion  as  "  itself  simply 
a  criminal  conspiracy  and  a  gigantic  assassination  "  ; 
the  following  glowing  period — "  Now  that  their  bat 
talions  of  treason  are  broken  and  flying  before  the 
victorious  legions  of  the  republic,  the  chief  traitors 
in  this  great  crime  against  your  government  secretly 
conspire  with  their  hired  confederates  to  achieve  by 
assassination  what  they  in  vain  attempt  by  wager  of 
battle  "  ; — and  the  unequivocal  announcement  that 
"  it  is  for  this  secret  conspiracy  in  the  interest  of  the 
rebellion,  formed  at  the  instigation  of  the  chief  in 
that  rebellion,  and  in  pursuance  of  which  the  acts 
charged  and  specified  are  alleged  to  have  been  done, 
and  with  the  intent  laid,  that  the  accused  are  upon 
trial"  :  finish  the  exordium. 

The  speaker  then  tackles  the  question  of  jurisdic 
tion,  which,  he  remarks  by  the  way,  "  as  the  Court 
has  already  overruled  the  plea,"  he  would  pass  over 


84  MARY    E.    SURRATT. 

in  silence,  "  but  for  the  fact  that  a  grave  and  elabo 
rate  argument  has  been  made  by  the  counsel  for  the 
accused,  not  only  to  show  want  of  jurisdiction,  but 
to  arraign  the  President  of  the  United  States  before 
the  country  and  the  world  as  a  usurper  of  power 
over  the  lives  and  the  liberties  of  the  prisoners." 

He  dexterously  evades  the  force  of  the  argument 
that  the  civil  courts  of  the  District  were  open  when 
the  crime  was  committed,  by  asserting  that  "they 
were  only  open  *  *  *  and  are  only  open  at  this  hour 
by  force  of  the  bayonet ; "  and  he  claims  that  the 
President  acting  by  a  military  force  had  as  much 
right  to  try  the  co-conspirators  of  Booth,  as  to  pur 
sue,  capture  and  kill  the  chief  criminal  himself; 
which,  if  true,  leads  us  into  the  maintenance  of  the 
monstrous  doctrine  that  the  President  by  a  summary 
order  might  have  strung  up  the  culprits  without  the 
interposition  of  any  court.  He  then  enters  upon  an 
argument  to  show  that  the  Commission,  from  the 
very  nature  of  its  organization,  cannot  decide  that 
it  is  no  Court,  and  he  ridicules  the  idea  that  these 
nine  subordinate  military  officers  could  question  the 
authority  of  their  Commander-in-Chief. 

In  this  connection,  he  gently  rebukes  Mr.  Ewing 
for  his  bold  statement  to  the  Commission  :  "  You, 
gentlemen,  are  no  court  under  the  Constitution ! " 
reminding  him  that  "  not  many  months  since  he  was 
a  general  in  the  service  of  the  country  and  as  such 
in  his  department  in  the  West  proclaimed  and  en 
forced  martial  law ; "  and  asks  him  whether  he  is 


HER   TRIAL   AND    EXECUTION.  85 

"  quite  sure  he  will  not  have  to  answer  for  more  of 
these  alleged  violations  of  the  rights  of  citizens  than 
any  of  the  members  of  the  Court  ?  " 

He  professes  his  high  regard  for  General  Ewing 
as  a  military  commander  who  has  made  a  "  liberal 
exercise  of  this  power/'  and  facetiously  wishes  "  to 
know  whether  he  proposes,  by  his  proclamation 
of  the  personal  responsibility  awaiting  all  such 
usurptions,"  that  he  himself  shall  be  "  drawn  and 
quartered." 

After  disposing  of  General  Ewing  in  this  gin 
gerly  manner,  he  compensates  himself  for  the  slight 
restraint  by  pouring  the  vials  of  his  unstinted 
wrath  upon  Reverdy  Johnson ;  representing  him  as 
"  denouncing  the  murdered  President  and  his  suc 
cessor,"  as  making  "  a  political  harangue,  a  partisan 
speech  against  his  government  and  country,  thereby 
swelling  the  cry  of  the  armed  legions  of  sedition  and 
rebellion  that  but  yesterday  shook  the  heavens." 
He  characterizes  one  of  the  most  temperate  and 
dignified  of  arguments  as  aa  plea  in  behalf  of  an 
expiring  and  shattered  rebellion,"  and  "  a  fit  subject 
for  public  condemnation." 

He  calls  upon  the  people  to  note, 

"That  while  the  learned  gentleman  [Mr.  Johnson],  as  a 
volunteer,  without  pay,  thus  condemns  as  a  usurpation  the 
means  employed  so  effectually  to  suppress  this  gigantic  insur 
rection,  the  New  York  News,  whose  proprietor,  Benjamin  Wood, 
is  shown  by  the  testimony  upon  your  record  to  have  received 
from  the  agents  of  the  rebellion  §25,000,  rushes  into  the  lists  to 
champion  the  cause  of  the  rebellion,  its  aiders  and  abettors,  by 


86  MAEY   E.   SURE  ATT. 

following  to  the  letter  his  colleague  [Mr.  Johnson],  and  with 
greater  plainness  of  speech,  and  a  fervor  intensified  doubtless 
by  the  $25,000  received,  and  the  hope  of  more,  denounces  the 
Court  as  a  usurpation  and  threatens  the  members  with  the  con 
sequences." 

And  he  interrupts  his  tirade  against  one  of  the 
greatest  men  this  country  has  produced  to  burst  forth 
into  the  following  grandiloquent  apostrophe  : 

11  Youngest  born  of  the  Nations !  Is  she  not  immortal  by  all 
the  dread  memories  of  the  past — by  that  sublime  and  voluntary 
sacrifice  of  the  present,  in  which  the  bravest  and  noblest  of  her 
sons  have  laid  down  their  lives  that  she  might  live,  giving  their 
serene  brows  to  the  dust  of  the  grave,  and  lifting  their  hands 
for  the  last  time  amidst  the  consuming  fires  of  battle ! " 

After  a  brief  defense  of  the  secret  sessions  of  the 
Commission,  the  learned  advocate  enters  upon  his 
circumstantial  reply  to  the  argument  of  Mr.  Johnson, 
into  which  it  is  not  worth  while  to  follow  him,  as  the 
main  points  of  his  contention  have  been  rendered 
obsolete  by  the  Supreme  Court  of  the  United  States. 

Suffice  it  to  say,  he  holds  that  the  President  of  the 
United  States  has  the  power,  of  his  own  motion,  to 
declare  martial  law  in  time  of  war,  over  the  whole 
United  States,  whether  the  States  are  within  the 
theatre  of  the  war  or  not ;  and  that  President  Lin 
coln  exercised  this  power  by  his  proclamation  of 
September,  1862,  by  virtue  of  which  martial  law 
prevailed  over  the  whole  North,  including,  of  course, 
the  District  of  Columbia,  on  the  day  of  the  assas 
sination  ;  and,  farther,  that  certain  subsequent  acts 


HER   TRIAL   AND   EXECUTION.  87 

of  Congress,  though  not  in  express  terms  yet  by  fair 
implication,  had  ratified  the  proclamation. 

He  contends,  in  consequence,  that  "  nothing  can 
be  clearer  than  that  citizen  and  soldier  alike,  in  time 
of  civil  or  foreign  war,  are  triable  by  military  tri 
bunals  for  all  oifences  of  which  they  may  be  guilty, 
in  the  interest  of,  or  in  concert  with  the  enemy ; " 
and  that  ".these  provisions,  therefore,  of  your  Con 
stitution  for  indictment  and  trial  by  jury  in  civil 
courts  of  all  crimes  are  *  *  *  silent  and  inoperative 
in  time  of  war  when  the  public  safety  requires  it." 

Listen  to  this  judicial  expounder  of  constitutional 
law  ! 

"  Here  is  a  conspiracy  organized  and  prosecuted  by  armed 
traitors  and  hired  assassins,  receiving  the  moral  support  of 
thousands  in  every  State  and  district,  who  pronounced  the  war 
for  the  Union  a  failure,  and  your  now  murdered  but  immortal 
Commander-in-Chief  a  tyrant. 

"  It  is  in  evidence  that  Davis,  Thompson,  and  others  *  *  * 
agreed  and  conspired  with  others  to  poison  the  fountains  of 
water  which  supply  your  commercial  metropolis,  and  thereby 
murder  its  inhabitants ;  to  secretly  deposit  in  the  habitation  of 
the  people  and  in  the  ships  in  your  harbor  inflammable  mate 
rials,  and  thereby  destroy  them  by  fire ;  to  murder  by  the  slow 
and  consuming  torture  of  famine  your  soldiers,  captives  in  their 
hands ;  to  import  pestilence  in  infected  clothes  to  be  distributed 
in  your  capital  and  camps,  and  thereby  murder  the  surviving 
heroes  and  defenders  of  the  Republic. 

"I  claim  that  the  Constitution  itself  *  *  *  by  express  terms, 
has  declared  whatever  is  necessary  to  make  the  prosecution  of 
the  war  successful,  may  be  done,  and  ought  to  be  done,  and  is 
therefore  constitutionally  lawful. 

"Who  will  dare  to  say  that  in  the  time  of  civil  war  no  person 
shall  be  deprived  of  life,  liberty  and  property,  without  due 


88  MARY   E.    SURRATT. 

process  of  law?  This  is  a  provision  of  your  Constitution,  than 
which  there  is  none  more  just  and  sacred  in  it;  it  is,  however, 
only  the  law  of  peace,  not  of  war. 

"In  time  of  war  the  civil  tribunals  of  justice  are  wholly  or 
partially  silent,  as  the  public  safety  may  require ;  *  *  *  the 
limitations  and  provisions  of  the  Constitution  in  favor  of  life, 
liberty  and  property  are  therefore  wholly  or  partially  sus 
pended." 

He  makes  allusion  to  the  recent  selection  of 
President  Lincoln,  as  ratifying  any  doubtful  exercise 
of  power  by  him  : 

"  The  voice  of  the  people,  thus  solemnly  proclaimed,  by  the 
omnipotence  of  the  ballot  *  *  *  ought  to  be  accepted,  and  will 
be  accepted,  1  trust,  by  all  just  men,  as  the  voice  of  God." 

He  concludes  his  plea  in  favor  of  the  jurisdiction 
of  the  Commission,  by  declaring  that  for  what  he 
had  uttered  in  its  favor  "  he  will  neither  ask  pardon 
nor  offer  apology,"  and  by  quoting  Lord  Brougham's 
speech  in  defence  of  a  bill  before  the  House  of  Lords 
empowering  the  Viceroy  of  Ireland  to  apprehend 
and  detain  all  Irishmen  suspect  of  conspiracy. 

The  Special  Judge- Advocate  then  proceeds  to  sum 
up  the  evidence,  in  doing  which  he  leaves  nothing 
to  the  free  agency  of  the  Court.  He,  first,  by  a 
review  of  the  testimony  of  the  Montgomeries  and 
Conovers,  proves  to  his  own  and,  presumably,  to 
the  Court's  satisfaction,  that  "Davis,  Thompson, 
Cleary,  Tucker,  Clay,  Young,  Harper,  Booth  and 
John  H.  Surratt  did  combine  and  conspire  together 
in  Canada  to  kill  and  murder  Abraham  Lincoln, 


HER  TRIAL   AND   EXECUTION.  89 

Andrew  Johnson,  Wm.   H.   Seward   and    Ulysses 
S.  Grant." 

"Surely  no  word  further  need  be  spoken  to  show  that  John 
Wilkes  Booth  was  in  this  conspiracy  ;  that  John  H.  Surratt  was 
in  this  conspiracy ;  and  that  Jefferson  Davis,  and  his  several 
agents  named,  in  Canada,  were  in  this  conspiracy. 

"  Whatever  may  be  the  conviction  of  others,  my  own  con 
viction  is  that  Jefferson  Davis  is  as  clearly  proven  guilty  of  this 
conspiracy  as  is  John  Wilkes  Booth,  by  whose  hand  Jefferson 
Davis  inflicted  the  mortal  wound  upon  Abraham  Lincoln." 

After  such  utterances  as  these,  it  is  hardly  neces 
sary  to  state  that  this  impartial  Judge  declares  every 
single  person  on  trial,  as  well  as  John  H.  Surratt, 
guilty  beyond  the  shadow  of  a  doubt. 

"  That  John  H.  Surratt,  George  A.  Atzerodt,  Mary  E.  Surratt, 
David  E.  Herold,  and  Louis  Payne  entered  into  this  conspiracy 
with  Booth,  is  so  very  clear  upon  the  testimony,  that  little 
time  need  be  occupied  in  bringing  again  before  the  Court  the 
evidence  which  establishes  it. 

"It  is  almost  imposing  upon  the  patience  of  the  Court  to 
consume  time  in  demonstrating  the  fact,  which  none  conversant 
with  the  testimony  of  this  case  can  for  a  moment  doubt,  that 
John  H.  Surratt  and  Mary  E.  Surratt  were  as  surely  in  the 
conspiracy  to  murder  the  President  as  was  John  Wilkes  Booth 
himself." 

He  lets  out  the  secret  that  the  mother  is  on  trial 
as  a  substitute  for  her  son,  whom  the  Secretary  of 
War  and  the  Bureau  of  Military  Justice  had  failed 
to  capture,  by  saying : 

"  Nothing  but  his  conscious  coward  guilt  could  possibly  in 
duce  him  to  absent  himself  from  his  mother,  as  he  does,  upon 
her  trial." 


90  MARY    E.   SURRATT. 

After  having  reiterated  over  and  over  again,  with 
all  the  authority  of  his  office,  what  he  had  for  hours 
endeavoured  to  enforce  by  all  the  resources  of  his 
intellect,  that  the  guilt  "  of  all  these  parties,  both 
present  and  absent "  is  proved  "  beyond  any  doubt 
whatever,"  and  "  is  no  longer  an  open  question ; " 
he  closes  by  formally,  and  with  a  very  cheap  show 
of  magnanimity,  leaving  "  the  decision  of  this  dread 


CHAPTER  VI. 
THE  VERDICT,  SENTENCE  AND  PETITION. 

WITH  the  loud  and  repeated  denunciations  of 
this  elaborate  and  vindictive  harangue,  full 
as  it  was  of  rhetorical  appeals  to  the  members  of  the 
Commission  to  avenge  the  murder  of  "  their  beloved 
Commander-in-Chief,"  and  of  repeated  and  most 
emphatic  assurances  of  the  undoubted  guilt  of  each 
and  every  one  of  the  prisoners,  as  well  as  of  all  their 
alleged  accomplices,  still  ringing  in  the  ear  of  the 
Court ;  the  room  is  for  the  last  time  cleared  of  spec 
tators,  counsel  for  the  prisoners  and  reporters ;  the 
mournful  procession  of  the  accused  marches  for  the 
last  time  from  the  dock  to  their  solitary  cells,  their 
fetters  clanking  as  they  go;  and  the  Commission 
meets  to  deliberate  upon  its  verdict.  But  who 
remains  in  the  room,  meets  with  the  Court  and 
participates  in  its  secret  and  solemn  deliberations? 
Who  but  Colonel  Burnett,  the  officer  who  had  so 
zealously  conducted  the  preliminary  examinations 
of  the  witnesses  and  marshalled  the  evidence  for  the 
prosecution?  Who  but  Recorder  Joseph  Holt,  the 
head  of  the  Bureau  of  Military  Justice,  the  left  hand 
of  Stanton  as  Baker  was  his  right  ?  Who  but  John 

91 


92  MARY   E.    SURRA TT. 

A.  Bingham,  the  Special  Judge- Advocate,  who  had 
so  mercilessly  conducted  the  trial,  assailing  counsel, 
browbeating  witnesses  for  the  defense,  declaring  that 
all  participants  in  the  rebellion  were  virtually  guilty 
of  the  assassination,  and  who  had  just  closed  his  long 
speech,  in  which  he  had  done  his  utmost  to  stir  up  the 
Commission  to  the  highest  pitch  of  loyalty,  unrea 
soning  passion  and  insatiable  desire  for  vengeance  ? 

Where  can  we  look  in  the  history  of  the  world 
for  a  parallel  to  such  a  spectacle  ?  A  woman  of  re 
finement  and  education,  thrown  together  in  one  mass 
with  seven  men,  to  be  tried  by  nine  soldiers,  for  the 
crime  of  conspiring  with  Jefferson  Davis,  the  arch 
enemy  of  every  member  of  the  tribunal,  to  kill,  and 
killing,  the  beloved  Commander-in-Chief  of  every 
member  of  the  tribunal ;  three  experienced  criminal 
lawyers  eagerly  engaging  in  the  task  of  proving  her 
guilty ;  pursuing  it  for  days  and  weeks  with  the 
unrelenting  vigor  of  sleuth-hounds ;  winding  up  by 
reiterating  in  the  most  solemn  manner  their  over 
whelming  conviction  of  her  guilt ;  and  then  all  three 
being  closeted  with  the  Court  to  take  part  in  making 
up  the  doom  of  death  ! 

And  here  let  us  pause  to  consider  one  feature  of 
the  trial  and  of  the  summing  up  of  Judge  Bingham, 
which  has  not  yet  been  noticed  because  it  deserves 
special  and  prominent  remark. 

It  appeared  from  the  testimony  on  the  part  of  the 
prosecution,  unmistakably,  that,  during  the  fall  of 
1864  and  the  winter  of  1864-5,  Booth  was  brooding 


HER   TRIAL   AND    EXECUTION.  93 

over  a  wild  plot  for  the  capture  of  the  President 
(either  on  one  of  his  drives,  or  in  the  theatre,  where 
the  lights  were  to  be  turned  off),  then  hurrying  off 
the  captive  to  lower  Maryland,  thence  across  the 
Potomac,  and  thence  to  Richmond  ;  thereby  to  force 
an  exchange  of  prisoners,  if  not,  possibly,  a  cessation 
of  the  war.  It  was  a  plot  of  the  kind  to  emanate 
from  the  disordered  brain  of  a  young,  spoiled,  dis 
sipated  and  disappointed  actor.  During  this  period, 
Booth  made  some  trifling  and  miserably  inadequate 
preparations,  and  endeavored  to  enlist  some  of  his 
associates  in  its  execution ;  and,  by  his  personal 
ascendency  over  them,  he  did  in  fact  entangle,  in  a 
more  or  less  vague  adhesion  to  the  plot,  Arnold, 
O'Laughlin,  Atzerodt,  Payne,  Herold,  John  H. 
Surratt,  Lloyd,  and,  possibly,  Dr.  Mudd  and  Weich- 
man. 

On  the  fall  of  Richmond,  and  the  surrender  of 
Lee,  this  any-how  impracticable  scheme  was  neces 
sarily  abandoned.  Indeed,  the  proof  showed  that 
Arnold  and  O'Laughlin  had  deserted  their  leader 
some  time  before. 

It  further  appeared  in  the  testimony  that  it  was 
not  until  after  the  forced  abandonment  of  this  plot 
and  the  desertion  of  most  of  his  adherents,  that 
Booth,  plunged  as  he  was  into  the  depths  of  chagrin 
and  despair  because  of  the  collapse  of  the  rebellion, 
suddenly,  as  a  mere  after-thought,  the  offspring  of 
a  spirit  of  impotent  revenge,  seized  upon  the  idea 
of  murder,  which  was  not  in  fact  brought  to  the 


94  MARY    E.    SURRATT. 

birth  until  the  afternoon  of  the  fourteenth,  when 
he  was  first  informed  of  the  promised  attendance  of 
President  Lincoln  and  General  Grant  at  the  theatre. 
Now,  the  existence  of  the  plot  to  capture,  although 
it  looked  forth  from  the  evidence  steadily  into  their 
faces,  the  Judge-Advocates  bound  themselves  not 
to  recognize.  In  the  first  place,  such  a  concession 
would  forever  demolish  the  preconceived  theory  of 
the  Secretary  of  War,  Colonel  Baker  and  the  Bureau 
of  Military  Justice,  that  the  conspiracy  to  murder 
emanated  from  the  Confederate  Government  through 
its  Canadian  agents,  by  pointing  directly  to  another 
plot  than  the  one  to  kill  as  that  in  which  these 
agents  had  been  interested.  The  horrid  monster  of 
a  widespread,  treasonable  conspiracy  to  overthrow 
the  government,  which  had  been  conjured  up  in  the 
imagination  of  the  Secretary  of  War  and  then  cher 
ished  in  the  secret  recesses  of  the  Bureau  of  Military 
Justice,  would  have  immediately  shrunk  into  the 
comparatively  simple  case  of  an  assassination  of  the 
President  and  an  attempted  assassination  of  the  Sec 
retary  of  State,  by  two  worthless  villains  suddenly 
seizing  opportunity  by  the  forelock  to  accomplish 
their  murderous  purpose.  And,  in  the  next  place, 
the  concession  of  such  a  plot  as  a  fact  would  go  far 
to  establish  the  innocence  of  Mrs.  Surratt,  Arnold, 
O'Laughlin  and  Mudd,  as  well  as  that  of  John  H. 
Surratt,  by  explaining  such  suspicious  circumstances 
as  the  frequent  rendezvous  of  Booth,  Payne  and 
others  at  Mrs.  Surratt' s  house,  which  practice,  as  it 


HER   TRIAL   AND   EXECUTION.  95 

was  proved,  ceased  altogether  on  the  fall  of  Rich 
mond  and  the  immediate  departure  of  the  son  to 
Canada.  To  the  Judge-Advocates,  if  not  to  the 
Court,  any  evidence  looking  towards  innocence  was 
most  distasteful  and  unwelcome.  They  were  in  no 
mood  to  reconcile  what  they  considered  the  damning 
proofs  of  a  conspiracy  to  kill  their  "  beloved  Com- 
mander-in-Chief "  with  the  innocence  of  the  fettered 
culprits  before  them,  by  admitting  a  plot  to  capture, 
into  which  nevertheless  those  same  proofs  fitted 
with  surprising  consistency.  Besides,  in  the  eyes 
of  Bingham  and  Holt,  complicity  in  a  plot  to  cap 
ture,  although  unexecuted,  was  proof  of  complicity  in 
the  plot  to  murder,  and  also  of  itself  deserved  death. 
In  this  direction,  therefore,  the  Judge-Advocates 
were  mole-eyed.  On  the  contrary,  they  hailed  the 
slightest  indication  of  guilt  with  a  glow  of  triumph. 
In  the  direction  of  guilt,  they  were  lynx-eyed. 

Consequently,  they  bent  every  energy  to  identify 
the  plot  to  capture  with  the  plot  to  kill.  They  in 
troduced  anonymous  letters,  dropped  letters  ;  a  letter 
mailed  nearly  a  month  after  the  assassination  directed 
to  J.  W.  B. ;  a  letter  in  cipher,  purporting  to  be 
dated  the  day  after  the  assassination,  addressed  to 
John  W.  Wise,  signed  "  No  Five,"  found  floating  in 
the  water  at  Morehead  City,  North  Carolina,  as  late 
as  the  first  of  May  ;  this  last,  the  most  flagrant  viola 
tion  and  cynical  disregard  of  the  law  of  evidence  on 
record. 


96  MAEY   E.    SUERATT. 

They  did  more.  They  labored  to  keep  out  all 
reference  to  the  plot  to  capture.  And  it  was  for 
this  reason,  that  the  Judge- Advocates  deliberately 
suppressed  the  diary  found  on  the  body  of  Booth. 
Its  contents  demonstrated  the  existence  of  the  plot 
to  capture. 

Instead  of  allowing  the  officer  who  testified  to  the 
articles  taken  from  the  dead  body  of  Booth  to  make 
a  detailed  statement  in  response  to  one  general  ques 
tion  as  to  what  they  were,  the  examining  counsel 
shows  him  first  the  knife,  then  the  pistols,  then  the 
belt  and  holster,  then  a  file  with  a  cork  at  one  end, 
then  a  spur,  then  the  carbine,  then  the  bills  of 
exchange,  then  the  pocket-compass ;  following  the 
exhibition  of  every  article  with  the  interrogatory, 
"  Did  you  take  this  from  the  corpse  of  the  actor?  " 
But  no  diary  was  exhibited  or  even  spoken  of,  al 
though,  as  has  been  mentioned,  it  was  carried  by  this 
same  officer  and  Colonel  Baker  to  Secretary  Stanton 
on  the  night  following  the  capture.  That  these 
Judge- Advocates  had  carefully  searched  through  the 
diary  for  items  they  could  use  against  the  prisoners, 
is  shown  by  their  calling  one  of  the  proprietors  of 
the  "  National  Intelligencer,"  as  a  witness,  to  con 
tradict  the  statement  that  Booth  had  left  a  written 
article,  setting  forth  the  reasons  for  his  crime,  for 
publication  in  that  paper — a  statement  found  only 
in  the  diary  whose  very  existence  they  kept  secret. 

Therefore,  when  Judge  Bingham  came  to  review 
the  evidence,  he  utterly  refused  to  recognize  in  the 


HER   TEIAL   AND    EXECUTION.  97 

testimony  any  such  thing  as  a  plot  to  capture ;  he 
shut  his  eyes  to  it  and  obstinately  ignored  it ;  he 
scornfully  swept  it  aside  as  an  absurdity  it  would 
be  waste  of  time  to  combat ;  and  he  twisted  every 
circumstance  which  looked  to  a  connection,  however 
remote,  with  an  abandoned  plot  to  kidnap,  into  a 
proof,  solid  and  substantial,  of  complicity  in  the  plot 
to  murder. 

And,  therefore,  when  this  same  thorough-going 
advocate,  with  his  two  emulous  associates,  proceeded 
in  secret  conclave  with  the  members  of  the  Com 
mission  to  go  over  the  testimony  for  the  purpose  of 
making  up  their  verdict  and  sentence,  he  summarily 
stifled  any  hint  as  to  the  possibility  of  a  plot  to  cap 
ture  ;  he  banished  from  the  minds  of  the  Court,  if 
they  ever  entertained  such  a  purpose,  any  attempt 
to  reconcile  the  circumstantial  evidence  with  the 
existence  of  such  a  plot ;  and,  besides,  he  held  it  up 
to  the  condemnation  of  those  military  men  as  equally 
heinous  and  as  deserving  the  same  punishment  as  the 
actual  assassination. 

Thus,  the  presence  of  these  prosecutors  during 
the  deliberations  of  the  Court  must  have  exerted  a 
deadly  influence  (if  any  influence  were  necessary) 
against  the  prisoners,  and  benumbed  any  imparti 
ality  and  freedom  of  judgment  which  might  other 
wise  have  lodged  in  the  members  of  the  Commission. 
The  Commission,  with  its  three  attending  prose 
cuting  officers,  held  two  secret  sessions — Thursday 
and  Friday,  the  29th  and  30th  of  June ;  on  the  first 
7 


98  MARY    E.    SURRATT. 

day  from  10  o'clock  in  the  morning  until  6  o'clock 
in  the  evening,  on  the  second  day,  probably,  during 
the  morning  only.  The  record  of  the  proceedings 
is  meagre,  but  contains  enough  to  show  the  lines  of 
the  discussion  which,  in  such  an  unexpected  manner 
through  one  whole  day,  prolonged  the  deliberations 
of  a  tribunal  organized  solely  to  obey  the  predeter 
mination  of  a  higher  power,  and  even  made  necessary 
an  adjournment  over  night. 

There  was  no  difficulty  with  the  verdicts,  except 
in  the  case  of  Spangler,  over  the  degree  of  whose 
guilt  a  majority  of  the  Commission  presumed  for 
the  first  time  to  differ  with  the  Judge-Advocates. 
They  would  unite  in  a  conviction  of  the  crime  of 
assisting  Booth  to  escape  from  the  theatre  with 
knowledge  of  the  assassination,  but  they  would  go 
no  farther.  They  would  not  find  him  a  participant 
in  the  "  traitorous  conspiracy,"  This  poor  fellow, 
as  we  can  see  now,  was  clearly  innocent  of  the  main 
charge;  but  that  was  no  reason,  then,  why  the 
Commission  should  find  him  so.  There  was  more 
testimony  pointing  to  his  complicity  wi.th  Booth 
on  the  fatal  night  than  there  was  against  Arnold 
or  O'Laughlin  or  even  Mrs.  Surratt;  and  Judge 
Bingham,  the  guardian  and  guide  of  the  Court, 
had  pronounced  it  "  Conclusive  and  brief."  The 
testimony  of  the  defense,  however,  appears  over 
whelmingly  convincing,  and,  moreover,  his  case  was 
admirably  managed  by  General  Ewing. 


HER   TKIAL    AND    EXECUTION.  99 

For  all  the  rest  there  was  no  mercy  in  the  ver 
dict.  Every  one  was  found  guilty  of  the  charge  as 
formulated  (eliminating  Spangler) ;  that  is,  in  the 
judgment  of  the  Commission,  they  had,  each  and 
all,  been  engaged  in  a  treasonable  conspiracy  with 
Jefferson  Davis,  John  H.  Surratt,  John  Wilkes 
Booth  and  the  others  named,  to  kill  Abraham  Lin 
coln,  President,  Andrew  Johnson,  Vice-President, 
Wm.  H.  Seward,  Secretary  of  State,  U.  S.  Grant, 
Lieutenant-General ;  and  that  in  pursuance  of  such 
conspiracy  they  (the  prisoners)  together  with  John 
H.  Surratt  and  J.  Wilkes  Booth,  had  murdered 
Abraham  Lincoln,  assaulted  with  intent  to  kill  W. 
H.  Seward,  and  lain  in  wait  with  intent  to  kill 
Andrew  Johnson  and  U.  S.  Grant. 

This  was  the  deliberate  judgment  of  the  Com 
mission  as  guided  by  Judge-Advocates  Holt,  Burnett 
and  Bingharn.  With  the  same  breath  with  which 
they  pronounced  the  guilt  of  Mrs.  Surratt,  they  pro 
nounced  also  the  guilt  of  her  son,  of  Jefferson  Davis, 
of  Clement  C.  Clay,  of  George  H.  Sanders,  of  Bev 
erly  Tucker.  And  there  can  be  no  doubt  that  if 
these  men  had  also  been  upon  trial,  they  all  would 
have  been  visited  with  the  same  condemnation  and 
would  have  met  the  same  doom. 

The  Commission,  further,  found  Herold,  Atzerodt, 
Payne  and  Arnold  guilty  of  the  Specification  as 
formulated  (eliminating  Spangler) ;  Mrs.  Surratt 
guilty,  except  that  she  had  not  harbored  and  con 
cealed  Arnold  or  O'Laughlin ;  Dr.  Mudd  guilty, 


100  MARY    E.    SURE  ATT. 

except  that  he  had  not  harbored  or  concealed  Payne, 
John   H.  Surratt,   O'Laughlin,   Atzerodt  or  Mrs. 
Surratt ;  and,  strangest  of  all,  they  found  O'Laughlin 
guilty  of  the  Specification,  except  that  he  had  not  lain 
in  wait  for  General  Grant  with  intent  to  kill  him, 
which  was  the  very  part  in  the  conspiracy  he  was 
charged  in  the  Specification  with  having  undertaken. 
It  should  be  recollected  that,  in  the  first  moments  of 
the  panic  succeeding  the  assassination,  Stanton  and 
his  subordinates  had  included  among  the  objects  of 
the  conspiracy,  as  if  to  complete  its  symmetry,  the 
murder  of  the  Secretary  of  War,  himself.     After 
wards,  probably  because  of  the  attitude  of  Stanton 
relative  to  the  prosecution,  Grant  was  substituted 
as  the  victim   of  O'Laughlin  and  not  of  Booth ; 
Stanton's  son   having  discovered  a  resemblance  of 
the  captured  O'Laughlin  to  the  mysterious  visitor  at 
his  father's  house  during  the  serenade  on  the  night 
of  the  13th  of  April,  when  General  Grant  was  also 
present.      This  pretty  romance,  the   testimony  on 
behalf  of  O'Laughlin  effectually  dissipated  on  the 
trial,  but  the  indomitable  Bingham  still  insisted  on 
holding  the  prisoner  to  a  general  complicity  with 
the  plot.     In   this   instance,  as  well  as  in  that  of 
Spangler,   there   may   have    been    some   dissension 
between  a  majority  of  the  officers  and  the  Judge- 
Advocates,  but,  taken  altogether,  the  eight  verdicts 
could  not  have  cost  the  Commission  much  time.     It 
was  organized  to  convict,  and  it  did  convict. 


HER   TRIAL   AND   EXECUTION.  101 

So  that  it  was  not  until  the  Court,  having  made 
up  its  verdicts,  proceeded  to  affix  its  sentences,  that 
the  three  advocates,  still  assisting  at  the  work  of 
death,  encountered  the  unforeseen  difficulties  which 
compelled  a  prolongation  of  the  session.  The  crime 
or  crimes  of  which  the  prisoners  were  all  pronounced 
guilty  (with  the  possible  exception  of  Spangler's) 
were  capital,  and  the  Secretary  of  War,  on  the  eve 
of  the  assembling  of  the  Commission,  had  already 
denounced  against  such  offenses  (not  excepting 
Spangler's)  the  punishment  of  death. 

The  sentence,  however,  under  the  rules  governing 
military  commissions,  was  wholly  within  the  power 
of  the  Court,  which,  no  matter  what  the  nature  of 
the  verdict,  could  affix  any  punishment  it  saw  fit, 
from  a  short  imprisonment  up  to  the  gallows.  Its 
two-fold  function  was,  like  a  jury  to  find  a  verdict, 
not  only,  but,  like  the  judge  in  a  common-law  court, 
to  pronounce  sentence ;  and,  unlike  such  a  judge,  in 
pronouncing  sentence,  the  Commission  was  confined 
within  certain  limits  by  no  statute.  Although  the 
whole  proceedings  of  the  Court  must  be  subjected  to 
the  final  approval  of  the  President,  yet  its  members 
were  clothed  alike  with  the  full  prerogative  of  justice 
and  the  full  prerogative  of  clemency.  There  was 
one  limit,  however.  While  a  majority  could  find 
the  verdict  and  prescribe  every  other  punishment,  it 
required  two-thirds  of  the  Commission  to  inflict  the 
penalty  of  death.  Four  officers,  therefore,  could 
block  the  way  to  the  scaffold,  and  five  could  miti- 


102  MARY    E.    SURRATT. 

gate  any  sentence,  to  any  degree,  and  for  any,  or  for 
no  reason. 

The  Commission  must  have  taken  up  the  cases  for 
sentence  in  the  order  adopted  in  the  formal  Charge. 
As  to  the  first  three — Herold,  Atzerodt  and  Payne 
— there  could  have  been  no  dissent  or  hesitation. 
The  Commission,  with  hardly  a  moment's  delibera 
tion,  must  have  ratified  the  judgment  of  the  Judge- 
Advocates  and  condemned  the  prisoners  to  be  hung 
by  the  neck  until  dead.  The  sentences  of  death 
formally  declare  in  every  instance  that  two-thirds 
of  the  Commission  concur  therein,  but,  as  to  these 
three,  we  can  scarcely  be  in  error  in  stating  the  Court 
was  unanimous.  It  was  not  until  the  cases  of  the 
next  three — O'Laughlin,  Spangler  and  Arnold — 
were  reached,  that  symptoms  of  dissatisfaction  with 
the  sweeping  doom  of  death,  so  confidently  pro 
nounced  by  Judge  Bingham  in  his  charge,  first 
began  to  show  themselves  amongst  the  members  of 
the  Court.  It  seems  that  now,  after  having  joined 
with  the  counsel  in  pronouncing  capital  punishment 
upon  the  three  most  prominent  culprits,  the  majority 
could  no  longer  whet  their  appetite  for  blood  so  as 
to  keep  it  up  to  the  same  fierce  edge  as  that  of  the 
Judge- Advocates. 

The  deviations  from  the  Charge  and  Specification, 
the  Court  had  finally  prescribed  in  the  verdicts 
against  O'Laughlin  and  Spangler,  were  not  thought 
by  the  prosecutors  to  be  of  such  importance  as  to 
warrant  a  softening  of  the  sentence.  But  here  the 


HER   TKIAL   AND    EXECUTION.  103 

loyalty  of  some  members  of  the  Commission  began 
to  falter,  and  refuse  to  bear  the  strain.  They  had 
found  O'Laugblin  guilty  of  the  "  traitorous  con 
spiracy,"  and  Spangler  guilty  of  aiding  Booth  to 
escape,  and  Arnold  guilty  in  the  same  degree  as 
Herold,  Atzerodt  and  Payne,  but  in  none  of  these 
cases  could  the  attending  advocates  extort  a  two- 
thirds  vote  for  death.  In  the  case  of  Spangler, 
owing,  it  is  said,  to  the  impression  made  by  General 
Ewing  and  the  influence  of  General  Wallace,  they 
were  compelled  to  allow  a  sentence  of  but  six  years 
imprisonment.  And  in  the  case  of  the  two  others 
— convicted  co-conspirators  with  Booth  and  Davis 
though  they  were — these  prosecuting  officers  had  to 
rest  satisfied  with  but  life-long  imprisonment. 

It  was  too  evident  that  five  members  of  the  Com 
mission  had  slipped  the  bloody  rein.  Three  lives 
had  they  taken.  Henceforth  they  would  stop  just 
this  side  the  grave. 

At  this  point — when  the  Commission  had  sen 
tenced  to  death  three  men  and  had  just  declined  to 
sentence  to  death  two  more  whom  it  had  pronounced 
guilty  of  the  same  crime — at  this  point  it  was,  that 
the  sentence  of  Mary  E.  Surratt  came  up  for  deter 
mination. 

Now,  the  crimes  of  which  Arnold  had  been  found 
guilty  were  both  in  law  and  in  fact  the  same  of  which 
she  had  been  found  guilty.  Even  the  particular 
allegation  in  the  Specification  is  the  same  in  both 


104  MARY    E.    SURE  ATT. 

cases,  except  some  immaterial  variance  in  the  ver 
biage  and  in  the  names  of  co-conspirators. 

Of  course,  it  will  be  presumed  that  the  Commis 
sion  had  found  the  woman  guilty  without  being 
pressed.  But,  equally  of  course,  it  will  not  be 
doubted  that,  in  determining  the  sentence  which 
should  follow  the  verdict,  the  question  of  exercising 
the  same  mercy  as  the  Commission  had  just  exercised 
in  the  case  of  a  man  convicted  of  the  same  crime, 
must  have  arisen  in  the  case  of  the  woman.  And, 
the  question  once  having  arisen,  the  first  impulse  of 
the  majority,  if  inclined  still  to  mercy,  must  have 
been  to  exert  their  own  unquestioned  function,  and, 
as  in  the  other  cases,  mitigate  the  sentence  them 
selves.  They  would  have,  originally,  no  motive  to 
thrust  upon  the  President,  who  was  to  know  com 
paratively  nothing  of  the  evidence,  the  responsibility 
of  doing  that  thing,  which  they  themselves  who  had 
heard  the  whole  case  thought  ought  to  be  done,  and 
which  in  a  parallel  case  they  had  just  done.  Even 
if  they  believed  the  woman's  crime  had  a  deeper 
tinge  of  iniquity  than  either  Arnold's  or  Mudd's 
(of  which  the  respective  verdicts,  however,  give  no 
hint),  but  that  nevertheless  her  age  and  sex  ought 
to  save  her  from  the  scaffold,  they  need  not  have 
turned  to  the  President  for  mercy  on  such  a  ground. 
The  woman  clothed  upon  by  her  age  and  sex  had 
sat  for  weeks  bodily  before  them.  This  very  miti 
gation  was  what  a  majority  of  the  Court  had  power 
to  administer.  The  reason  of  the  mitigation  was  a 


HER   TRIAL   AND    EXECUTION.  105 

matter  of  no  moment.  The  Court  could  commute 
for  "  age  and  sex  "  as  well  as'the  President,  and,  for 
that  matter,  could  state  the  reason  for  the  milder 
penalty  in  the  sentence  itself. 

Therefore,  it  may  be  taken  for  granted  that  here 
the  Judge-Advocates  again  found  that  two-thirds  of 
the  Court  would  not  concur  in  the  infliction  of  the 
death  penalty.  Nay,  that  even  a  majority  could  not 
be  obtained.  Five  out  of  the  nine  officers  announced 
themselves  in  favor  of  imprisonment  for  life. 

Here,  indeed,  was  a  coil !  The  prosecutors  were 
at  their  wits'  ends.  And  lo  !  when  they  passed  on 
to  consider  the  last  case,  that  of  Dr.  Mudd,  the  same 
incomprehensible  reluctance  to  shed  more  blood  did 
but  add  to  their  discomfiture.  The  verdict  indeed 
had  been  easily  obtainable,  but  the  coveted  death- 
sentence  would  not  follow.  The  whole  day  had  been 
spent  in  these  debatings.  The  expedient  of  adjourn 
ing  over  to  the  next  day,  perhaps,  was  now  tried ; 
and  the  dismayed  Judge- Advocates,  with  but  three 
out  of  the  eight  heads  they  had  made  so  sure  of, 
and  their  "  female  fiend  "  likely  to  slip  the  halter, 
hurry  away  to  consult  with  their  Chief. 

Edwin  M.  Stanton,  as  he  had  presided  over  the 
whole  preparatory  process,  so  too  had  kept  watch 
over  the  daily  progress  of  the  trial  from  afar.  Every 
evening  his  zealous  aide-de-camps  made  report  for 
the  day  and  took  their  orders  for  the  morrow. 

After  the  death  of  Booth  and  the  escape  of 
John  H.  Surratt,  the  condemnation  to  death  of  the 


106  MARY    E.    SURE  ATT. 

mother  of  the  fugitive  had  become  his  one  supreme 
aim. 

The  condemnation  of  the  other  prisoners  was  to 
him  either  a  matter  of  no  doubt  or  was  a  minor 
affair.  Three  heads  of  the  band  of  assassins  stood 
out  in  bloody  prominence — Booth,  John  H.  Surratt 
and  Payne.  The  first  had  been  snatched  from  his 
clutches  by  a  death  too  easy.  Payne,  with  hand 
cuffs  and  fetters  and  chains  and  ball  and  hood,  he 
might  be  confident,  could  not  evade  his  proper  doom. 
Surratt,  by  the  aid  of  some  inscrutable,  malignant 
power,  had  contrived  to  baffle  all  the  efforts  of  his 
widespread  and  mighty  machinery  of  military  and 
detective  police.  But  he  had  the  mother,  the  friend 
of  Booth  and  the  entertainer  of  Payne ;  and  she, 
the  relentless  Secretary  with  his  accordant  lackeys 
had  sworn,  should  not  fail  to  suffer  in  default  of  the 
self-surrender  of  her  son.  She,  moreover,  was  to 
be  made  an  example  and  a  warning  to  the  women 
of  the  South,  who,  in  the  judgment  of  these  three 
patterns  of  heroism,  had  "  unsexed  "  themselves  by 
cherishing  and  cheering  fathers,  brothers,  husbands 
and  sons  on  the  tented  field. 

In  the  conclave  which  Stan  ton  and  his  two  co- 
•  adjutors  held,  either  during  the  recesses  of  the  pro 
longed  session  of  the  first  day,  or  most  likely  during 
the  night  of  the  adjournment,  it  was  resolved,  that 
if  the  manly  reluctance  of  five  soldiers  to  doom  a 
woman  to  the  scaffold  could  be  overcome  in  no  other 
way,  to  employ  as  a  last  resort  the  "suggestion" 


HER   TRIAL   AND    EXECUTION.  107 

that  the  Court  formally  condemn  her  to  death,  and 
then,  as  a  compromise,  the  soft-hearted  five  petition 
the  President  to  commute — the  three  plotters  trust 
ing  to  the  chances  of  the  future,  with  the  petition 
in  their  custody  and  the  President  under  their  do*- 
minion,  to  render  ineffectual  this  forced  concession 
to  what  they  scorned  as  a  weak  sentimentalism. 
This  suggestion  of  what  was  in  truth  a  most  extra 
ordinary  device — a  petition  to  the  President  to  do 
what  the  Court  could  do  itself — could  not  have 
emanated  from  the  merciful  majority  of  the  Court, 
which  subsequently  did  sign  the  fatal  document. 
They,  at  least,  were  sincere,  and,  if  let  alone,  would 
have  proceeded  immediately  to  embody  their  own 
clemency  in  a  formal  sentence,  as  they  had  done  with 
O'Laughlin  and  Arnold,  and  as  they  were  about  to 
do  with  Mudd.  Had  there  been  but  one,  or  two, 
or  three  dissentients,  so  that  they  were  powerless  in 
the  face  of  two-thirds  of  the  Commission ;  or  even 
had  there  been  four — a  number  sufficient  to  block  a 
death-sentence  but  not  sufficient  to  dictate  the  action 
of  the  Court,  then,  indeed,  recourse  to  the  clemency 
of  the  Executive  might  have  been  a  natural  pro 
ceeding.  But  a  clear  majority  had  no  need  to  look 
elsewhere  for  a  power  of  commutation  which  they 
themselves  possessed  in  full  vigor,  and  which,  in  all 
probability,  after  the  first  three  death-penalties,  they 
had  determined  to  apply  in  every  one  of  the  other 
cases.  Neither  could  the  suggestion  have  been  made 
by  one  of  the  minority,  because  none  of  them  signed 


108  MARY    E.    SURRA TT. 

the  petition  to  the  last.  The  four  must  have  been 
steadfast  and  uncompromising  for  blood.  The 
whole  scheme  proceeded  from  a  quarter  outside  the 
Court — a  quarter  which,  on  the  one  hand,  was  pos 
sessed  by  an  overmastering  revengeful  passion,  such 
as  was  required  to  point  the  five  officers  to  a  seem 
ing  source  of  mercy  to  which  they  might  appeal  and 
thus  avoid  the  exercise  of  their  own  prerogative  in 
antagonism  to  their  four  brethren,  and,  on  the  other 
hand,  harbored  some  secret  knowledge  or  malign 
intent  that  the  petition  would  or  should  be,  in  fact, 
an  empty  form ;  from  a  quarter,  in  short,  where  the 
desire  for  the  condemnation  to  death  of  Mrs.  Surratt 
was  all-controlling  and  where  the  condition  of  the 
President  was  well  known.  They,  who  suggested 
the  death-sentence  and  the  petition  as  a  substitute 
for  the  milder  penalty,  were  surely  all  on  the  side 
of  death,  and  hoped,  if  they  did  not  believe,  that 
the  prayer  of  the  petition  would  be  of  no  avail; 
else  they  would  not  have  adopted  such  a  circuitous 
method  to  do  what  the  five  officers  could  immedi 
ately  have  accomplished  themselves.  In  one  word, 
the  contrivers  of  the  device  of  petition  were  not  those 
who  desired  to  save  the  bare  life  of  the  convicted 
she-conspirator,  but  were  those  who  would  be  satis 
fied  with  nothing  less  than  her  death  on  the  scaffold. 
The  suggestion  was  wholly  sinister  and  malevolent. 
On  the  other  hand,  the  majority  of  the  Court  did 
really  desire  that  her  punishment  should  not  exceed 
that  of  Arnold,  O'Laughlin  and  Mudd,  and  they 


HER   TEIAL   AND    EXECUTION.  109 

certainly  would  never  have  had  recourse  to  a  petition 
to  the  President,  had  they  not  been  cheated  into  be 
lieving  that  that  method  of  proceeding  was  likely  to 
effectuate  what  they  had  full  power  to  do.  Never 
would  these  five  soldiers,  or  any  two  of  them,  have 
given  their  voices  for  the  death  of  this  woman,  had 
they  dreamed  for  a  moment  that  their  signing  of 
the  petition  was,  and  was  meant  to  be,  but  a  farce. 
They  would  not  have  played  such  a  ghastly  trick 
under  the  shadow  of  the  gibbet. 

Accordingly,  when  the  Commission  reassembled, 
either  after  recess  or  adjournment,  the  reinvigorated 
counsellors  immediately  unfolded  their  plan.  We 
can  almost  hear  their  voices,  in  that  upper  room  of 
the  Old  Penitentiary,  as  they  alternately  urge  on 
the  Court.  Holt,  making  a  merit  of  yielding  in  the 
cases  of  Spangler,  of  O'Laughlin,  of  Arnold  and 
of  Mudd,  denounces  the  universal  disloyalty  of  the 
women  of  the  South,  and  pleads  the  necessity  of  an 
example. 

Bingham,  holding  up  both  mother  and  son  as 
equally  deep-dyed  in  blood  with  Booth  and  Payne, 
both  insinuates  and  threatens  at  the  same  time,  that, 
if  " tenderness"  forsooth,  is  to  be  shown  because  of 
the  age  and  sex  of  such  a  she-assassin,  then,  for  the 
sake  of  the  blood  of  their  murdered  Commander-in- 
Chief,  do  not  his  own  soldiers  show  it,  but  let  his 
successor  take  the  fearful  responsibility. 

One  of  the  five  gives  way,  and  now  there  is  a 
majority  for  death.  One  more  appeal !  The  life  of 


110  MARY    E.    SURRATT. 

the  woman  trembles  in  the  balance.  Once  more  to 
the  breach  !  The  supreme  reserve  is  at  last  brought 
forward — an  argument  much  in  use  with  Judge- 
Advocates  in  cases  of  refractory  courts-martial,  as  a 
last  resort — that  the  President  will  not  allow  a  hair 
of  her  head  to  be  harmed,  but  that  terror,  TERROR, 
is  necessary ;  in  this  instance,  to  force  the  son  to 
quit  his  hiding  place,  the  life  of  the  mother  must 
be  the  bait  held  out  to  catch  the  unsurrendering 
son.  We  will  hang  him  and  then  free  the  woman's 
neck. 

Another  vote  comes  over.  Two-thirds  at  last 
concur,  and  her  doom  is  sealed.  They  sentence 
"  Mary  E.  Surratt  to  be  hanged  by  the  neck  until 
she  be  dead."  Judge  Bingham  sits  down  and  em 
bodies  the  memorable  "  suggestion  "  in  writing  as 

follows  : 

[It  is  without  address.] 

"  The  undersigned,  members  of  the  Military  Commission 
detailed  to  try  Mary  E.  Surratt  and  others  for  the  conspiracy 
and  the  murder  of  Abraham  Lincoln,  late  President  of  the 
United  States,  &c.,  respectfully  pray  the  President,  in  consid 
eration  of  the  sex  and  age  of  the  said  Mary  E.  Surratt,  if  he 
can,  upon  all  the  facts  in  the  case,  find  it  consistent  with  his 
sense  of  duty  to  the  country,  to  commute  the  sentence  of  death, 
which  the  Court  have  been  constrained  to  pronounce,  to  im 
prisonment  in  the  penitentiary  for  life. 

Respectfully  submitted." 

General  Ekin  copies  it  on  a  half-sheet  of  legal-cap 
paper,  and  the  five  officers,  viz. :  Generals  Hunter, 
Kautz,  Foster  and  Ekin,  and  Colonel  Tompkins, 


HER   TRIAL   AND    EXECUTION.  Ill 

sign  the  copy ;  General  Ekin  keeping  the  draft  of 
Bingham  as  a  memento  of  so  gentle  an  executioner. 
The  Commission  then  proceeds  to  the  next  and 
last  case,  and,  again  exercising  its  prerogative  of 
clemency,  sentences  Dr.  Mudd  to  imprisonment  for 
life.  It  is  now  Friday  noon.  The  result  of  the 
two-days7  secret  session,  consisting  of  a  succinct 
statement  of  the  verdict  and  sentence  in  every  case, 
in  the  foregoing  order,  is  redacted  into  a  record. 
The  presiding  officer  signs,  and  the  Recorder  coun 
tersigns  it.  It  is  placed  in  the  hands  of  the 
Judge- Advocate,  together  with  the  petition  to  the 
President.  There  is  an  adjournment  without  day. 
The  members  disperse,  and  the  work  of  the  Military 
Commission  is  over. 


CHAPTER  VII. 
THE  DEATH  WARRANT  AND  THE  EXECUTION. 

PROM  Friday  afternoon,  the  thirtieth  of  June, 
through  Saturday,  Sunday,  Monday  and 
Tuesday,  the  first  four  days  of  July,  the  record  of 
the  findings  and  sentences  remained  under  the  seal 
of  sworn  secrecy  in  the  custody  of  the  Judge- 
Advocate-General.  To  consummate  the  work  of 
the  Commission,  the  signature  of  the  President  to  a 
warrant  approving  its  action  and  directing  the  exe 
cution  of  its  judgment  was  necessary.  But,  during 
this  interval,  as  it  was  given  out  from  the  White 
House,  President  Johnson  was  too  ill  to  attend  to 
public  business.  In  the  meantime,  the  city,  and 
even  the  whole  country  to  its  very  borders,  were 
agitated  by  the  question :  What  is  to  be  the  fate 
of  Mrs.  Surratt?  The  doom  of  the  male  culprits 
was  for  the  moment  forgotten  in  the  intense  anxiety 
over  hers. 

Despite  the  seven-fold  seal  of  secrecy  which  cov 
ered  the  proceedings  of  the  secret  sessions,  whispers 
of  a  recommendation  of  mercy  filled  the  air.  In 
the  War  Department,  the  main  source  of  anxiety,  at 
the  same  time,  must  have  been  this  superfluous 
112 


HER-TEIAL   AND   EXECUTION.  113 

paper — the  distressing  outcome  of  an  unsuspected 
sentimental  weakness  in  five  of  our  chosen  men. 
After  the  final  adjournment  of  the  Commission, 
the  unobtrusive,  unaddressed  half-sheet  had  been 
fastened  to  the  record  of  the  sentences  by  the  same 
narrow  yellow  silk  ribbon  which  held  its  own  sheets 
together,  and  to  which  it  now  dangled  as  a  last  leaf, 
or  back.  A  safety-valve  to  the  misplaced  chivalry 
of  the  Court — it  had  served  its  purpose,  and  was 
henceforth  useless.  That  it  should  now  turn  itself 
into  an  implement  of  evil,  minister  to  the  cause  of 
rebellion  and  assassination,  cause  "Our  Own  Andy" 
to  flinch  at  last  and  thus  the  she-fiend  of  the  Bureau 
escape  her  doom  !  It  would  be  treason  to  suffer  it. 
Upon  that  resolve,  the  Triumvirate  of  Stanton, 
Holt  and  Bingham  had  once  for  all  determined. 
Indestructible,  inconcealable,  omnipotent,  indeed, 
must  that  paper  be,  which  could  thwart  their  united 
purpose. 

At  length,  on  the  morning  of  Wednesday,  the 
fifth,  Preston  King,  who,  in  those  days,  was  a 
favored  guest  at  the  White  House,  announced  in  the 
Judge- Advocate's  office  that  the  President  was  so 
much  better  as  to  be  able  to  sit  up ;  and  at  a  later 
hour  in  the  day,  General  Holt,  in  pursuance  of 
an  appointment,  started  on  his  solemn  errand.  The 
volumes  of  testimony  taken  before  the  Commission 
by  official  stenographers,  daily  reports  of  which  had 
been  furnished,  he,  of  course,  did  not  carry  with 
him.  In  the  interview  that  was  to  come,  there 
8 


114  MARY    E.    SURE  ATT. 

would  be  no  time  and  no  inclination  to  read  over 
bulky  rolls  of  examinations  and  cross-examinations 
of  witnesses.  From  aught  that  appears,  the  Presi 
dent  was  not  expected  to  read  over  the  evidence,  nor 
was  it  customary  in  such  cases.  It  may  have  been 
the  duty  of  the  Secretary  of  War  or  the  Attorney- 
General  to  scrutinize  the  testimony,  either  from  day 
to  day  or  at  the  close  of  the  trial.  But  all  that  the 
President  was  supposed  to  know  about  the  merits 
of  the  case  appears  to  have  been  derived  from  what 
any  of  his  Cabinet  saw  fit  to  inform  him,  from 
what  he  himself  casually  and  unofficially  read,  but, 
especially  and  principally,  from  what  the  Judge- 
Advocate  was  now  coming  to  tell  him.  As  to  the 
guilt  of  the  accused,  and  especially  of  Mrs.  Surratt, 
his  mind  had  long  ago  been  made  up  for  him  by  his 
imperious  War  Minister,  from  whose  despotic  sway 
he  had  not  as  yet  recovered  energy  enough  to  free 
himself.  He  was  still  in  that  brief  introductory 
period  of  his  Presidency  which  may  be  called  his 
Stanton  Apprenticeship ;  still  eager  "  to  make  trea 
son  odious  ;"  full  of  threatenings  to  hang  Davis  and 
other  Southern  leaders.  He  had  not  yet  awakened 
from  the  state  of  semi-stupefaction  into  which  his 
sudden  and  awful  elevation  seems  to  have  thrown 
him  ;  and,  in  this  state,  he  must  have  been  extremely 
averse  to  dwelling  on  any  of  the  circumstances  of  the 
assassination  to  which  he  owed  his  high  place.  The 
idea  of  clemency  to  any  one  of  the  band  of  assas 
sins,  male  or  female,  which  his  War-Secretary's  court 


HER  TRIAL   AND   EXECUTION.  115 

might  convict,  would  have  been  intolerable  to  his 
imagination  and  sickening  to  his  sense  of  security. 
What  Andrew  Johnson,  at  this  moment,  wanted  was 
to  push  away  from  his  mind  all  thoughts  of  the 
tragic  end  of  his  predecessor,  and  to  allow  retributive 
vengeance  to  take  the  most  summary  course  with 
the  least  possible  knowledge  and  trouble  to  himself. 
And  this  mood  of  the  presidential  mind  was  well 
known  to  the  Judge- Advocate-General,  as  he  entered 
the  President's  room.  He  brought  with  him  so 
much  of  the  record  of  the  proceedings  of  the  Com 
mission  as  was  necessary  to  the  accomplishment  of 
his  errand — viz  :  the  record  of  the  findings  and  sen 
tences,  which  the  President  was  to  endorse.  This 
document  consisted  of  a  few  sheets  of  legal-cap  paper 
fastened  together  at  the  top,  written  on  both  sides  in 
the  fashion  of  legal  papers,  i.  e.,  beginning  at  the 
top  of  the  first  page  and,  on  reaching  the  bottom, 
turning  up  the  paper  and  writing  on  the  back  from 
the  bottom  to  top.  It  was  a  document  complete  in 
itself,  the  written  record  ending  on  the  first  page  of 
the  last  half-sheet — thus  leaving  blank  the  remainder 
of  that  page  and  the  whole  of  the  obverse  side; 
ample  room  for  the  death-warrant.  To  this  record, 
but  forming  no  part  of  it,  the  Petition,  as  we  have 
said,  had  been  affixed,  but  in  such  a  manner  as  to  be 
easily  separable  without  mutilation.  He  must  also 
have  brought  with  him  his  official  report  of  the 
trial — styled  "  The  formal  brief  review  of  the  case/7 
which  was  subsequently  appended  to  the  regular 


116  MARY   E.    SURRATT. 

Report  of  the  Judge- Advocate- General  to  the  Sec 
retary  of  War  and  transmitted  to  the  Congress  in 
December  following — because  it  is  addressed  "  To 
the  President,"  is  dated  "  July  5, 1865,"  and  is  signed 
"  J.  Holt."  It  recites  the  verdicts  and  sentences ; 
justifies  its  brevity  by  referring  to  "the  full  and  ex 
haustive  "  argument  of  Judge  Bingham  ;  certifies  to 
the  regularity  and  fairness  of  the  proceedings ;  and 
recommends  the  execution  of  the  sentences ;  but  it 
makes  no  mention  of  the  Petition,  or  any  "  suggestion  " 
of  mercy. 

The  Judge- Advocate  could  have  anticipated  no 
difficulty  in  obtaining  the  approval  of  the  President, 
conscious  as  he  was  that  the  grounds  of  such  ap 
proval  were  to  be  furnished  to  the  President  by 
himself.  The  approval  being  had,  the  fixing  of  the 
day  of  execution  could  cause  no  disagreement.  His 
only  possible  source  of  embarrassment  was  the  peti 
tion  for  commutation.  But  it  would  be  strange, 
indeed,  if  a  few  apt  words  could  not  further  emas 
culate  the  mild,  hypothetical  language  in  which  his 
colleague,  Bingham,  had  seen  fit  to  clothe  that  paper. 

He  found  the  President  "  alone,"  and  (as  he  him 
self  says)  "  waiting  for"  him,  "  very  pale,  as  if  just 
recovered  from  a  severe  illness." 

"  Without  delay  "  he  "  proceeded  to  discharge  the 
duty  which  brought "  him  "  into  his  presence." 
What  took  place  at  this  "confidential  interview" 
(as  Holt  calls  it)  can  never  be  precisely  known  ;  the 
distinguished  interlocutors  having  subsequently  risen 


HER   TRIAL   AND    EXECUTION.  117 

into  unappeasable  quarrel  over  the  presence  or  ab 
sence  of  the  petition,  and  given  contradictory  ver 
sions.  Whatever  the  truth  may  be,  it  is  evident 
that  everything  went  smoothly  at  the  moment.  The 
Judge- Advocate  was  not  disappointed.  No  diffi 
culty  was  encountered.  What  was  done  was  done 
quickly  and  at  once.  The  record  may  have  been 
read  over ;  but  this  was  hardly  necessary,  as  the  bare 
mention  of  the  several  sentences  would  convey  a 
correct  summary  of  its  contents.  He  may  have  read 
the  "  brief  review  of  the  case "  he  had  prepared. 
As  Judge  Holt  relates,  he  said  to  the  President, 
"  frankly,  as  it  was  his  official  duty  to  do,"  that  in 
his  judgment  "  the  proceedings  of  the  Court  were 
regular,  and  its  findings  and  sentences  justified  by 
the  evidence,  and  that  the  sentences  should  be  en 
forced."  And  this  was  what  he  had  written  in  his 
"  Brief  Review."  What  more  could  the  successor 
of  the  murdered  Lincoln  want?  His  approval  must 
have  been  spontaneous  and  immediate.  As  Holt 
says,  "  at  that  time  Mr.  Johnson  needed  no  urging." 
Mention  may  have  been  made  of  the  curious  weak 
ness  infecting  some  members  of  "our  Court"  towards 
the  wicked  woman,  who.  as  Johnson  seems  then  to 
have  thought,  "  had  kept  the  nest  that  hatched  the 
egg  ; "  but  only  to  be  scouted  by  both  Judge- Advo 
cate  and  President  as  most  reprehensible  and  actually 
disloyal. 

Their  unanimity  over  the  salutary  effect  of  the 
hanging  of  this  one  woman  on  the  female  rebels  was 


118  MARY    E.    SUKRATT. 

more  than  fraternal.  And  it  is  probable  that  no 
more  explicit  mention  of  an  actual  petition  was 
made  by  Judge  Holt  in  his  conversation  with  the 
President  than  was  made  in  his  written  report  to 
the  President,  dated  the  same  day,  and  which  he  had 
with  him  at  the  time. 

The  day  of  execution  was  fixed  upon  with  the 
same  alacrity.  "  Make  it  as  soon  as  possible,  so 
that  the  disagreeable  business  may  be  over ;  say  the 
day  after  to-morrow — Friday,  the  seventh."  And, 
thereupon,  everything  being  agreed  upon,  Judge 
Holt  turns  over  the  papers  to  the  last  page  of  the 
record  and  spreads  it  upon  the  table.  Beginning, 
a  few  lines  below  the  signature  of  "D.  Hunter, 
President"  which  closes  the  record,  with  the  date, 

"Executive  Mansion,  July  5th,  1865," 

"  with  his  own  hand  "  he  writes  out  the  death  war 
rant.  As  this  includes  the  approval  of  the  sentences, 
the  appointment  of  the  day  and  hour  of  execution, 
and  the  designation  of  the  place  of  confinement  of 
those  condemned  to  imprisonment,  the  bottom  of  the 
page  is  reached  before  he  completes  his  task.  If  he 
had  turned  up  the  page  and  continued  his  writing 
on  the  obverse  side  from  the  bottom  down,  as  all 
the  foregoing  had  been  written,  then  the  petition  of 
mercy,  unaddressed  as  it  was,  would  have  been,  if 
still  attached,  directly  beneath  the  eye  of  the  Presi 
dent  as  he  signed  the  death-warrant.  But,  as  now 
appears  from  the  record  itself,  the  careful  Judge- 


HER   TRIAL   AND   EXECUTION.  119 

Advocate  did  not  turn  up  the  page  from  the  bottom. 
On  the  contrary,  reverting  to  the  layman's  way  of 
writing  papers,  he  whisks  the  whole  record  over,  and 
continues  the  writing  of  the  death-warrant  on  the 
back  of  the  last  half-sheet  of  the  record  from  the 
top  to  the  bottom — by  this  change  of  method,  either 
throwing  the  petition  under  the  leaves  of  the  record, 
or,  if  disengaged,  leaving  it  upside  down. 

When  he  has  thus  finished  his  draft  he  shoves  it 
over  to  the  President.  The  President  signs  it  with 
tremulous  hand.  The  " confidential  interview"  is 
at  an  end  ;  and  the  Judge-Advocate,  taking  up  the 
papers,  hurries  out  and  over  to  the  Department  of 
War. 

At  this  moment  the  petition  disappears  from  view. 
We  hear  no  more  of  it.  Thrust  as  a  convenient 
succedaneum  into  the  hands  of  the  majority  of  the 
Commission,  ignored,  suppressed  or  slurred  over 
when  before  the  President,  it  had  served  its  pitiful 
purpose.  Neither  the  Adjutant-General  nor  any  of 
his  clerks,  appear  to  have  noticed  it,  although  the 
record  must  have  been  copied  more  than  once  in  his 
office.  It  seems  to  have  sunk  suddenly  into  oblivion ; 
its  very  existence  became  the  subject  of  dispute.  It 
was  omitted  from  the  authorized  published  proceed 
ings  of  the  Commission,  It  was  omitted  from  the 
annual  report  of  the  Judge- Advocate.  The  disloyal 
paper  must  have  been  laid  alongside  the  suppressed 
"  Diary,"  there  to  repose  unseen  until  the  Impeach- 


120  MARY    E.    SURRATT. 

raent  of  Johnson  and  the  Trial  of  Surratt  summoned 
them  together  into  the  light  of  day. 

On  the  morning  of  Thursday,  the  sixth  day  of 
July,  the  six  days  ominous  silence  of  the  War- 
Department  is  broken.  An  order  issues  from  the 
Adjutant-General's  office  which,  bearing  date  the 
day  before  and  reciting  the  findings  and  death- 
sentences  of  the  Commission  and  the  death-warrant 
of  the  President,  commands  Major-General  Han 
cock  to  see  execution  done,  on  the  seventh,  between 
the  hours  of  ten  and  two. 

This  order  was  read  to  Mrs.  Surratt  at  noon.  She 
had  all  along  been  encouraged  to  hope.  She,  herself, 
had  never  been  able  to  realize  the  possibility  of  a 
capital  condemnation  in  her  own  case.  And,  here, 
suddenly,  was  Death,  with  violence  and  shame, 
within  twenty-four  hours.  She  sank  down  under 
the  blow.  In  faltering  accents  she  protested  that 
she  had  no  hand  in  the  murder  of  the  President,  and 
pleaded  for  a  few  days  more  time  to  prepare  for  death. 
During  the  remainder  of  the  day  and  throughout  the 
night,  she  was  so  prostrated  by  physical  weakness 
and  mental  derangement  as  to  necessitate  medical 
aid  to  keep  her  alive  and  i-ane.  The  cries  of  her 
daughter  could  be  heard  in  the  still  darkness  outside 
the  prison.  At  five  o'clock  in  the  morning,  the 
mother  (with  the  three  condemned  men),  was  re 
moved  to  a  solitary  cell  on  the  first  floor,  prepara 
tory  to  the  execution. 


HER   TRIAL   AND    EXECUTION.  121 

In  the  meantime,  when  it  first  became  known  that, 
by  the  sentence  of  the  Commission  and  the  direction 
of  the  President,  Mrs.  Surratt  was  to  die  by  the  rope 
on  the  same  scaffold  with  Payne,  Herold  and  Atze- 
rodt  within  twenty-four  hours,  a  chill  of  despairing 
terror  froze  the  blood  of  her  relatives  and  friends,  a 
thrill  of  consternation  swept  over  the  body  of  the 
citizens,  and  dark  misgivings  disturbed  even  the 
most  loyal  breasts.  A  stream  of  supplicants  at  once 
set  in  towards  the  Executive  Mansion — not  only 
friends  and  acquaintances  of  the  condemned  woman, 
but  strangers,  high-placed  men,  and  women  too,  who 
were  haunted  by  doubts  of  her  guilt  and  could  in 
some  degree  realize  her  agony. 

But  even  this  expiring  effort  of  sympathy,  the 
powers  behind  the  President  had  anticipated.  Ap 
prehensive  that  Andrew  Johnson,  at  the  last  moment, 
might  yield  to  distressing  importunities  for  more 
time,  they  had  already  taken  measures  that  their  sick 
man's  wish  to  hear  nothing  till  all  was  over  should 
be  scrupulously  respected.  Preston  King  and  General 
James  Lane  undertook  to  keep  the  door  and  bar  all 
access  to  the  President  during  the  dreadful  interval 
between  the  promulgation  of  the  sentence  and  its  ex 
ecution.  It  was  rumored  that  they,  with  a  congenial 
crew,  held  high  revelry  around  their  passive  Chief 
in  his  private  apartments.  Be  this  as  it  may,  no 
supplicant — friend,  acquaintance  or  stranger — was 
allowed  to  gain  access  to  the  President. 


122  MARY    E.    SURRATT. 

The  priests,  who  had  attested  upon  her  trial  the 
good  character,  the  piety  and  the  general  worth  of 
their  parishioner,  instinctively  turned  their  steps  to 
the  White  House  to  beg  for  clemency,  or,  at  least,  a 
respite.  They  were  repulsed  from  its  door.  In 

ghastly  mockery,  they  were  told  to  go  to Judge 

Holt. 

At  last,  the  daughter  of  the  victim  made  her  way 
to  the  very  threshold  of  the  President's  room. 
Frenzied  with  grief  she  assailed  the  portal  with  her 
cries  for  admission  to  plead  for  her  dying  mother. 
She  was  denied  admittance.  In  the  extremity  of 
her  despair  she  lay  down  upon  the  steps,  and,  in  the 
name  of  God,  appealed  to  the  President  and  to  the 
wardens,  only  to  listen  to  her  prayer.  The  grim 
guardians  of  the  door  held  it  shut  in  her  face. 

Denied,  thus,  even  an  appeal  to  Executive  clem 
ency,  the  friends  of  the  poor  woman,  as  a  last  most 
desperate  resort,  invoked  the  Constitution  of  their 
and  her  country  through  the  historic  writ  of  Habeas 
Corpus.  On  the  morning  of  the  day  of  the  execu 
tion,  they  found  a  judge  (Judge  Wylie  ;  all  honor  to 
his  memory ! )  who  had  the  independence  and  cour 
age  to  grant  the  writ.  At  half-past  eleven,  General 
IJancock  appeared  before  the  Judge  and  made  return 
that  by  order  of  the  President  the  Habeas  Corpus 
was  suspended  and  therefore  he  did  not  produce  the 
body.  The  order  of  the  President  dated  ten  o'clock, 
same  morning,  was  annexed  to  the  return  and  directed 
the  General  to  proceed  with  the  execution. 


HER   TRIAL    AND    EXECUTION.  123 

No  sooner  had  the  guarantees  of  the  Constitution 
been,  thus,  finally  set  at  naught,  than  the  cell-doors 
were  thrown  open  and  the  prisoners  summoned  to 
their  doom.  As  the  enfeebled  widow  raised  her 
trembling  limbs  from  off  the  coarse  mattress  which 
alone  separated  her  body  from  the  stone  floor  of  her 
dungeon,  she  strove,  in  broken  words,  to  assure  the 
soldiers,  who  had  come  to  bind  her  arms  behind  her 
back  and  tie  cords  around  her  skirts  above  and  be 
low  the  knee,  of  her  utter,  yet  helpless  innocence. 
Her  confessor,  who  stood  by  her  until  the  last,  gently 
pointed  out  to  her  the  uselessness  of  such  appeals, 
at  such  a  moment,  and  directed  her  hopes  towards 
Heaven. 

Amid  the  tolling  of  the  bells,  sending  a  shudder 
through  the  silent  population  of  the  city,  and  her 
alded  by  the  tramp  of  armed  men,  the  death-march 
of  the  doomed  woman  and  the  doomed  men  begins. 
The  still  breathing  men  and  still  breathing  woman 
are  clothed  already  in  their  shrouds.  As  she  totters 
first  along  the  corridor,  accompanied  by  her  priest 
and  requiring  two  soldiers  to  hold  her  erect,  the  very 
extremity  of  her  helplessness  and  woe  bears  witness 
in  her  favor.  Even  the  bloody  Payne,  who  walks 
next  behind  her,  has  broken  through  that  stolid  in 
difference  to  his  own  fate,  so  remarkable  as  to  indi 
cate  insanity,  to  clear  her  from  all  complicity  with 
the  assassination.  Herold  and  Atzerodt,  who  fol 
low,  though  themselves  speechless  with  terror,  seem 
to  wave  her  mute  acquittal,  as  they  stumble  along  into 


124  MARY   E.   STTRRATT. 

the  swift-coming  Darkness.  They  reach  the  prison- 
yard.  They  mount  the  high  scaffold.  They  are 
seated  in  four  chairs  facing  the  four  dangling  nooses, 
while  the  death-warrant  is  once  more  read.  Their 
graves,  already  dug,  are  in  full  sight  close  by. 
Their  coffins  stand  by  the  side  of  the  open  graves. 
They  are  raised  up  and  pushed  forward  upon  the  two 
drops,  Herold  and  Atzerodt  on  one,  Mrs.  Surratt  and 
Payne  on  the  other  ;  the  half-conscious  woman  still 
supported  by  the  two  guards.  The  ropes  are  ad 
justed.  The  hoods  drawn  over  the  face.  The  signal 
is  given.  The  two  drops  fall.  Surrounded  by  the 
unpitying  soldiery,  headed  by  the  unpitying  Hart- 
ranft,  the  woman  and  the  men  hang  writhing  in  the 
agonies  of  an  ignominious  death.  When  pronounced 
dead,  the  bodies  are  cut  down.  They  are  laid  out  on 
the  top  of  the  coffins.  A  hurried  post-mortem  ex 
amination  is  made.  And,  then,  at  four  o'clock  in 
the  afternoon,  they  are  inclosed  in  the  coffins  and 
buried  side  by  side.  The  soldiers  depart  with  flour 
ish  of  trumpet  and  beat  of  drum.  Silence  descends 
on  the  grounds  of  the  old  Arsenal  ;  broken  only  by 
the  pace  of  the  sentinel  set  to  guard  the  four  corpses. 

The  daughter  may  beg  the  stern  Secretary  to  yield 
up  the  body  of  her  murdered  mother,  that  she  may 
place  it  in  consecrated  ground.  But  she  will  beg  in 
vain. 

And  so  ended  the  fell  tragedy.  And  so  did  brave 
soldiers  avenge  the  murder  of  their  "  beloved  Com- 
rnander-in-Chief."  Methinks  their  beloved  Com- 


HER   TRIAL    AND    EXECUTION.  125 

mander-in-Chief,  could  his  freed  spirit  have  found 
a  mortal  voice,  would  have  spurned,  with  indignant 
horror,  the  savage  sacrifice  of  a  defenseless  woman 
to  appease  his  gentle  shade. 


CHAPTER  VIII. 
WAS  IT  NOT  MURDER? 

AND  now  what  shall  be  said  as  to  this  taking 
of  human  life? 

Maintaining  the  most  rigorous  allegiance  to  the 
simple  unadulterated  truth,  what  can  be  said  ?  Ar 
raigned  at  the  bar  of  the  common  law  as  expounded 
by  the  precedents  of  centuries,  and  confronted  by 
plain  provisions  of  the  Constitution  of  the  United 
States,  which  need  no  exposition  and  yet  have  been 
luminously  expounded  ;  but  one  thing  can  be  said. 

Had  Mary  E.  Surratt  the  right  guaranteed  by 
the  Constitution  to  a  trial  singly  and  alone,  in  a  reg 
ularly  constituted  civil  court,  and  by  a  jury  of  the 
vicinage,  the  individuals  of  which  she  might  select 
by  challenge,  both  for  cause,  in  all  cases,  and  with 
out  cause  to  a  certain  number,  before  she  could  be 
legally  convicted  of  any  crime  whatever,  or  be  law 
fully  punished  by  the  most  trivial  loss  of  property 
or  the  minutest  injury  to  limb,  to  say  nothing  of  the 
brutal  crushing  out  of  her  life  ?  That's  the  unevad- 
able  question  which  the  ages  put  and  will  continue  to 
put.  And  upon  its  precisely  truthful  answer,  de 
pend  the  character  and  color  of  the  acts  of  every  per- 
126 


HER   TRIAL   AND    EXECUTION.  127 

son  who  had  lot  or  part  in  the  execution  of  this 
woman . 

On  the  21st  day  of  October,  1864 — while  the  war 
was  still  raging — Larabdin  P.  Milligan,  a  citizen  of 
the  United  States  and  a  resident  of  Indiana,  was  ar 
raigned  before  a  Military  Commission  convened  by 
the  commanding  General  of  that  Military  District, 
at  Indianapolis,  on  the  following  charges  preferred 
against  him  by  Henry  L.  Burnett,  Judge-Advocate 
of  the  Department  of  the  West : 

1.  Conspiracy  against   the   Government   of  the 
United  States. 

2.  Affording  aid  and  comfort  to  the  rebels. 

3.  Inciting  insurrection. 

4.  Disloyal  practices. 

5.  Violation  of  the  laws  of  war, 

There  were  also  specifications,  the  substance  of 
which  was  that  Milligan  had  joined  and  aided  a  se 
cret  society,  known  as  the  Order  of  American  Knights 
or  Sons  of  Liberty,  for  the  purpose  of  overthrowing 
the  Government  and  authorities  of  the  United 
States  ;  had  communicated  with  the  enemy ;  con 
spired  to  seize  munitions  of  war  in  the  arsenals,  and 
to  liberate  prisoners ;  resisted  and  encouraged  resist 
ance  to  the  draft :  at  or  near  Indianapolis,  in  Indi 
ana,  "  a  State  within  the  military  lines  of  the  Army 
of  the  United  States,  and  the  theatre  of  military  op 
erations,  and  which  had  been  and  was  constantly 
threatened  to  be  invaded  by  the  enemy." 


128  MARY    E.    SURRATT. 

On  these  charges  and  specifications,  Milligan  was 
subjected  to  a  lengthy  trial  by  this  Military  Com- 
mision  which  finally  found  him  guilty  on  all  the 
charges  and  sentenced  him  to  be  hanged.  The  record 
was  approved  by  the  Commanding  General,  and  then 
transmitted  to  President  Lincoln,  who  held  it  long 
under  advisement,  and  was  so  holding  it  when  he 
was  killed.  His  successor,  at  about  the  same  time 
that  he  summoned  the  Commission  to  try  Mrs.  Sur- 
ratt,  at  length  approved  the  findings  and  ordered  the 
sentence  to  be  executed  on  Friday,  the  19th  day  of 
May,  1865. 

But  this  object-lesson  to  the  Commission  sitting 
at  that  date  in  the  old  Penitentiary  was  intercepted. 
On  the  10th  of  May,  Milligan  brought  the  record  be 
fore  the  United  States  Circuit  Court  by  a  petition 
for  his  discharge,  and,  the  two  judges  differing  upon 
the  main  question  of  the  jurisdiction  of  the  Commis 
sion,  the  cause  was  certified  under  the  statute  to  the 
Supreme  Court  of  the  United  States ;  in  deference  to 
which  action  the  President  suspended  the  execution. 
The  argument  before  that  high  tribunal  coming  on 
in  the  winter  of  1865-66,  a  great  array  of  counsel 
appeared  upon  both  sides ;  David  D.  Field,  James 
A.  Garfield  and  Jeremiah  S.  Black  for  the  prisoner, 
and  Attorney-General  Speed  and  Benjamin  F.  But 
ler  for  the  United  States.  The  counsel  for  the  Gov 
ernment  followed  the  same  line  as  did  Judge  Bing- 
ham  in  his  argument  on  the  " Conspiracy  Trial;" 
the  counsel  for  the  prisoner  on  their  side,  only  en- 


HER   TKIAL   AND    EXECUTION.  129 

larging,  emphasizing  and  enforcing  the  argument  of 
Reverdy  Johnson.  At  the  close  of  the  term  the 
Court  unanimously  decided  that  the  Military  Com 
mission  had  no  jurisdiction  to  try  Milligan  ;  that 
its  verdict  and  sentence  were  void ;  and  ordered  the 
defendant  discharged. 

At  the  next  term,  the  Court  handed  down  two 
opinions — one  the  opinion  of  the  Court,  read  by 
Judge  Davis,  in  which  four  of  his  colleagues  con 
curred,  and  one  by  Chief-Justice  Chase,  in  which 
three  of  his  colleagues  concurred.  The  two  opinions 

agreed  that,  as  matter  of  law.  the  President  could  not 

&  /  ' 

of  his  own  motion  authorize  such  a  Commission,  and 
that,  as  matter  of  fact,  the  Congress  had  not  author 
ized  such  a  Commission ;  and  therefore  they  were  at 
one  in  their  conclusion.  But  they  differed  in  this  ; 
that,  whereas  the  majority  of  the  Court  held  that 
not  even  the  Congress  could  authorize  such  a  Court, 
the  minority,  while  agreeing  that  the  Congress  had 
not  exercised  such  a  power,  were  of  opinion  that  such 
a  power  was  lodged  in  that*branch  of  the  Government. 

The  attempt  has  often  been  made  to  distinguish 
the  case  of  Mrs.  Surratt  from  that  of  Milligan  by 
alleging  that  Washington  at  the  time  of  the  assas 
sination  was  within  the  theatre  of  military  opera 
tions,  and  actually  under  martial  law,  whereas  Indi 
ana  at  the  time  of  the  Commission  of  Milligan's 
alleged  offenses  was  not. 

Now,  it  must  be  admitted  that  at  the  time  of  the 
murder  of  President  Lincoln  the  war  had  swept  far 
9 


130  MARY    E.    SURRATT. 

away  from  the  vicinity  of  the  Capital.  There  had 
been  no  Confederate  troops  near  it  since  Early's  raid 
in  the  summer  of  1864,  and  no  enemy  even  in  the 
Shenandoah  Valley  since  October.  It  must  also  be 
admitted,  and  was,  in  fact,  proved  on  the  trial,  that 
the  civil  courts  were  open  and  in  full  and  unob 
structed  discharge  of  their  functions.  As  for  the 
reiterated  affirmation  of  Judge  Bingham  that  the 
courts  were  only  kept  open  by  the  protection  of  the 
bayonet;  that  is  precisely  what  was  affirmed  by 
General  Butler,  in  his  argument  before  the  Supreme 
Court,  to  have  been  the  fact  in  Indiana. 

None  of  the  counsel  in  the  Milligan  case  claimed 
that  a  Military  Commission  could  possibly  have 
jurisdiction  to  try  a  simple  citizen  in  a  State  where 
there  was  no  war  or  rumors  of  war. 

"  We  do  fully  agree,  that  if  at  the  time  of  these  occurrences 
there  were  no  military  operations  in  Indiana,  if  there  was  no 
army  there,  if  there  was  no  necessity  of  armed  forces  there, 
*  *  *  then  this  Commission  had  no  jurisdiction  to  deal 
with  the  relator,  and  the  question  proposed  may  as  well  at  once 
be  answered  in  the  negative." 

They  contended,  as  the  very  basis  of  their  case, 
that  the  acts  of  Milligan  "  took  place  in  the  theatre 
of  military  operations,  within  the  lines  of  the  army, 
in  a  State  which  had  been,  and  then  was  constantly 
threatened  with  invasion. " 

And,  in  fact,  the  record  in  so  many  words  so 
stated,  and  the  statement  was  uncontroverted  by 
the  relator. 


HER   TRIAL   AND    EXECUTION.  131 

General  Butler  with  great  earnestness  put  the 
question  : 

<;  If  the  Court  takes  judicial  notice  that  the  courts  are  open, 
must  it  not  also  take  judicial  notice  how,  and  by  whose  protec 
tion,  and  by  whose  permission  they  were  so  open?  that  they 
were  open  because  the  strong  arm  of  the  military  upheld  them  ; 
because  by  that  power  these  Sons  of  Liberty  and  Knights  of 
the  American  Circle,  who  would  have  driven  them  away,  were 
arrested,  tried  and  punished. 

"  If  the  soldiery  of  the  United  States,  by  their  arms,  had  not 
held  the  State  from  intestine  domestic  foes  within,  and  the  at 
tacks  of  traitors  without ;  had  not  kept  the  ten  thousand  rebel 
prisoners  of  war  confined  in  the  neighborhood  from  being  re 
leased  by  these  Knights  and  men  of  the  Order  of  the  Sons  of 
Liberty  ;  there  would  have  been  no  courts  in  Indiana,  no  place 
in  which  the  Circuit  Judge  of  the  United  States  could  sit  in 
peace  to  administer  the  laws." 

Moreover,  the  opinion  of  the  minority  Judges 
bases  their  contention  that  Congress  had  the  power, 
if  it  had  chosen  to  exercise  it,  to  authorize  such  a  Mil 
itary  Commission,  upon  this  very  fact. 

''  In  Indiana,  for  example,  at  the  time  of  the  arrest  of  Milligan 
and  his  co  conspirators,  it  is  established  by  the  papers  in  the  rec 
ord,  that  the  State  was  a  military  district ;  was  the  theatre  of  mili 
tary  operations,  had  been  actually  invaded,  and  was  constantly 
threatened  with  invasion.  It  appears,  also,  that  a  powerful  se 
cret  association,  composed  of  citizens  and  others,  existed  within 
the  State,  under  military  organization,  conspiring  against  the 
draft,  and  plotting  insurrection,  the  liberation  of  the  prisoners 
of  war  at  various  depots,  the  seizure  of  the  State  and  national 
arsenals,  armed  co-operation  with  the  enemy,  and  war  against 
the  national  government." 


132  MAEY   E.    SUKRATT. 

Not  one  of  which  circumstances  (except  that  it 
was  a  military  district)  can  be  truthfully  predi 
cated  of  the  District  of  Columbia  at  the  time  of 
the  assassination. 

As  for  actual  martial  law,  there  was  no  declara 
tion  of  martial  law  claimed  for  the  City  of  Washing 
ton,  other  than  the  proclamation  of  the  President 
which  applied  as  well  to  Indiana,  and,  indeed,  to  the 
whole  North. 

We  are  justified,  therefore,  in  saying,  that  the 
Supreme  Court  of  the  United  States,  in  this  case  of 
Milligan,  pronounced  the  final  condemnation  of  the 
whole  proceedings  of  the  Military  Commission  which 
tried  and  condemned  Mary  E.  Surratt;  declaring, 
with  all  the  solemn  force  of  a  determination  of  the 
highest  judicial  tribunal  known  to  this  nation,  that 
every  one  of  its  acts,  from  its  creation  by  the  Pres 
ident  to  its  transmission  of  its  record  of  doom  to 
the  President,  was  in  direct  contravention  of  the 
Constitution  of  the  United  States  and  absolutely  null 
and  void. 

That  illustrious  Court,  speaking  by  Judge  David 
Davis,  thus  enunciates  the  law  : 

"The  Constitution  of  the  United  States  is  a  law  for  rulers  and 
people,  equally  in  war  and  in  peace, and  covers  with  the  shield 
of  its  protection  all  classes  of  men,  at  all  times,  and  under  all 
circumstances.  No  doctrine,  involving  more  pernicious  conse 
quences,  was  ever  invented  by  the  wit  of  man  than  that  any  of 
its  provisions  can  be  suspended  during  any  of  the  great  exigen 
cies  of  government.  Such  a  doctrine  leads  directly  to  anarchy 
or  despotism." 


HER   TRIAL   AND    EXECUTION.  133 

"  From  what  source  did  the  Military  Commission  *  *  derive 
their  authority  ?" 

"It  is  not  pretended  that  the  commission  was  a  court  ordained 
or  established  by  Congress." 

"  They  cannot  justify  on  the  mandate  of  the  President ;  be 
cause  he  is  controlled  by  law  and  has  his  appropriate  sphere  of 
duty,  which  is  to  execute  not  to  make  the  law  ;  and  there  is  no 
unwritten  criminal  code  to  which  resort  may  be  had  as  a  source 
of  jurisdiction." 

"  The  laws  and  usages  of  war  can  never  be  applied  to  citizens 
in  states  which  have  upheld  the  authority  of  the  government 
and  where  the  courts  are  open  and  their  processes  unobstructed. 
And  no  usage  of  war  could  sanction  a  military  trial  there  for 
any  offence  whatever  of  a  citizen  in  civil  life,  in  nowise  con 
nected  with  the  military  service.  Congress  could  grant  no  such 
power ;  and  to  the  honor  of  our  national  legislature  be  it  said 
it  has  never  been  provoked  by  the  state  of  the  country  even  to 
attempt  its  exercise." 

"  All  other  persons,"  (i.  e.,  all  other  than  those  in  the  mili 
tary  and  naval  service)  "  citizens  of  states  where  the  courts  are 
open,  if  charged  with  crime,  are  guaranteed  the  inestimable 
privilege  of  trial  by  jury.  This  privilege  is  a  vital  principle, 
underlying  the  whole  administration  of  criminal  justice;  it  is 
not  held  by  sufferance,  and  cannot  be  frittered  away  on  any 
plea  of  state  or  political  necessity." 

"  It  is  claimed  that  martial  law  covers  with  its  broad  mantle 
the  proceedings  of  this  Military  Commission." 

"  Martial  law  cannot  arise  from  a  threatened  invasion.  The 
necessity  must  be  actual  and  present ;  the  invasion  real,  such 
as  effectually  closes  the  courts  and  deposes  the  civil  adminis 
tration." 

"Martial  law  can  never  exist  where  the  courts  are  open,  and 
in  the  proper  and  unmolested  exercise  of  their  jurisdiction.  It 
is  also  confined  to  the  locality  of  actual  war." 

Had  the  swift  process  by  which  this  unfortunate 
woman  was  hurried  to  the  scaffold  been  interrupted 


134  MARY   E.    SURRATT. 

by  a  stay  to  allow  a  review  by  the  same  high  tribu 
nal  which  rescued  Milligan  from  the  jaws  of  death, 
it  cannot  be  doubted  that  in  her  case,  as  in  his,  the 
same  conclusions  would  have  been  reached,  viz.: 

1st.  "One  of  the  plainest  constitutional  provisions  was, 
therefore,  infringed  when"  (Mary  E.  Surratt)  "was  tried  by  a 
court  not  ordained  and  established  by  Congress,  and  not  com 
posed  of  judges  appointed  during  good  behavior." 

2nd.  "Another  guarantee  of  freedom  was  broken  when" 
(Mary  E.  Surratt)  "was  denied  a  trial  by  jury ;" 

that,  in  her  case,  as  in  his,  the  Court  would  have  set 
the  prisoner  free  ;  there  would  have  been  no  hang 
ing,  no  felon's  grave,  and  not  even  an  ulterior  at 
tempt  at  a  constitutional  trial. 

For  it  is  remarkable  that  although  the  Military 
tribunal  which  tried  Milligan  pronounced  him  guilty 
of  crimes  deserving  a  traitor's  death;  the^seeming 
strength  of  the  evidence  must  have  melted  away, 
strangely  enough,  when  subjected  to  the  prospective 
investigation  of  constitutional  courts,  as  there  was 
not  even  a  subsequent  effort  on  the  part  of  the  Gov 
ernment  to  call  him  to  account. 

Let  us  add,  as  a  final  corollary  to  this  exposition 
of  the  Constitution  by  the  Supreme  Court,  the  fol 
lowing  remark  :  that  the  ground  and  argument  em 
ployed  by  Attorney  General  Speed  in  his  opinion 
upon  the  right  of  the  President  to  order  the  trial  of 
the  alleged  assassins  by  Military  Commission,  and 
by  Judge- Advocate  Bingham  in  his  address  to  that 
Commission,  involve"]  a  reductio  ad  absurdum,  or, 


HER   TRIAL    AND    EXECUTION.  135 

rather,  a  reductio  ad  monstrosum,  that  is,  a  Reductio 
ad  absurdum  quia  monstrosum. 

For,  that  ground  and  that  argument,  invoked  to 
uphold  and  sanction  the  trial  of  civilians  by  military 
commissions,  necessarily  and  inevitably  go  farther, 
and  proclaim  the  right  of  President  Johnson,  alone, 
of  his  own  motion  and  without  the  interposition  of 
a  formal  court,  whether  military  commission  or 
drum-head  court-martial,  to  have  commanded  the 
immediate  execution  of  every  person  whom  he  might 
believe  to  be  guilty  of  participation  in  the  assassina 
tion  of  his  predecessor  or  in  the  presumed  attempt 
upon  himself. 

The  conclusion  forced  upon  us,  therefore, — the  one 
only  thing  to  be  said — is,  that  the  hanging  of  Mary 
E.  Surratt  was  nothing  less  than  the  crime  of  murder. 

Murder,  not  only  in  the  case  of  the  private  soldiers 
who  dragged  her  to  the  scaffold  and  put  the  rope 
about  her  neck  ;  they,  at  least  can  plead  the  almost 
irresistible  force  of  military  discipline. 

But  murder,  also,  in  the  case  of  the  Major-General 
whose  sword  gave  the  signal  for  the  drop  to  fall. 
General  and  soldiers  are  in  the  precise  position,  be 
fore  the  law,  of  a  mob  of  Lynchers  carrying  out  the 
judgment  of  a  Lynch  court. 

Murder,  not  only  in  the  case  of  the  one  military 
officer  who  superintended  the  details  of  the  execu 
tion.  He,  too,  though  with  much  less  force,  can 
plead  that  he  was  the  mere  bailiff  of  what  he  believed 
to  be  a  competent  Court. 


136  MARY    E.    SURRATT. 

But  murder,  also,  on  the  part  of  the  nine  military 
officers  and  the  three  advocates  who  tried  and  sen 
tenced  this  woman  to  death.  These  men,  in  the 
forum  of  the  law,  stand  in  the  precise  position 
of  any  nine  policemen  steered  by  any  three  police 
attorneys  in  the  city  of  New  York,  who  should 
dare  to  try,  convict  and  sentence  to  death  a  citizen 
of  that  city. 

Murder,  not  only  on  the  part  of  the  Commission 
and  its  lawyers ;  they  too  might,  possibly,  plead — 
though  with  still  diminishing  force — that,  although 
they  were  warned  and  took  the  awful  responsibility, 
still  they  believed  in  their  competency. 

But  murder,  also,  in  the  President  of  the  United 
States,  who  appointed  the  court,  approved  its  find 
ings,  and  commanded  the  execution  of  its  sentence. 
He  stands  before  the  law  in  the  same  position  as 
though,  sweeping  aside  all  empty  forms,  he  had  seized 
a  sword  and  with  his  own  hand  cut  off  the  head  of 
the  woman,  without  the  mockery  of  a  trial.  In  our 
frame  of  government,  there  is  surely  no  room  for  such 
a  twi-formed  barbarian-despot,  as  a  President  having 
the  power  to  pick  out  from  the  army,  of  which  he  is 
the  Commander-in-chief,  the  members  of  a  court  to 
try  and  punish  with  death,  at  his  option,  any  one  of 
the  citizens,  for  an  abortive  attempt  on  his  own  life. 

And  it  was  murder,  not  only  in  the  case  of  the  Pres 
ident;  he,  too,  but  with  scarcely  audible  voice,  might 
plead  the  coercion  of  his  situation — sitting  as  he  did 
in  the  seat  of  the  murdered  Lincoln. 


HER   TRIAL   AND    EXECUTION.  137 

But  it  was  murder,  also,  in  the  Secretary  of  War, 
who  initiated  the  iniquitous  process,  pushed  on  the 
relentless  prosecution,  shut  his  own  ears  and  the  ears 
of  the  President  to  all  pleas  for  mercy,  presided  like 
a  Moloch  over  the  scaffold,  and  kept  the  key  of  the 
charnel-house,  where,  beside  the  unpitied  carcasses 
of  the  reputed  ruffians  forced  upon  her  in  her  ordeal 
of  torture  and  in  the  hour  of  death,  the  slaughtered 
lady  lay  mouldering  in  her  shroud.  Here,  at  least, 
the  plea  of  mitigation  exhales  in  a  cry  like  that  of 
Payne,  "  I  was  mad  ! " 

Weigh  the  extenuating  circumstances  in  whatever 
scale  you  may ;  extend  as  much  mercy  as  possible 
to  those  who  showed  no  mercy  in  their  day  of  power — 
still,  the  offense  of  every  one  and  all,  who  had  hand, 
part  or  lot  in  this  work  of  death,  contains  every  ele 
ment  which,  under  the  most  rigorous  definition  of 
the  law,  makes  up  the  Crime  of  Murder.  The 
killing  was  there.  The  unlawful  killing  was  there. 
The  premeditated  design  to  effect  death  was  there. 
The  belief  of  the  perpetrators,  that  they  had  a 
right  to  kill,  or  that  they  were  commanded  to 
kill  by  an  overruling  power,  before  a  court  of 
law  avails  not  a  whit.  Ignorance  of  the  consti 
tution  as  well  as  the  law  excuses  no  man,  be  he 
civilian  or  soldier,  President  or  assassin,  War- 
Minister  or  Payne. 

Murder  it  essentially  was,  and  as  such  it  should 
be  denounced  to  the  present  and  future  generations. 


138  MARY   E.   SURRATT. 

Garrett  Davis  told  no  more  than  the  exact  truth 
when  he  declared  in  his  place  in  the  Senate  of  the 
United  States : 

"There  is  no  power  in  the  United  States,  in  time  of  war  or 
peace,  that  can  legitimately  and  constitutionally  try  a  civilian 
who  is  not  in  the  naval  or  military  service  of  the  United 
States,  or  in  the  militia  of  a  State  in  the  actual  service  of  the 
United  States,  by  a  court-martial  or  by  a  military  commission. 
It  is  a  usurpation,  and  a  flagitious  usurpation  of  power  for  any 
military  court  to  try  a  civilian,  and  if  any  military  court  tries 
a  civilian  and  sentences  him  to  death  and  he  is  executed  under 
the  sentence,  the  whole  court  are  nothing  but  murderers,  and 
they  may  be  indicted  in  the  State  courts  where  such  military 
murders  are  perpetrated  ;  and  if  the  laws  were  enforced  firmly 
and  impartially  every  member  of  such  a  court  would  be  con 
victed,  sentenced  and  punished  as  a  murderer." 

Although  the  actual  guilt  of  any  of  the  victims 
constitutes  no  legal  defense  to  this  fearful  charge, 
yet  as  the  unquestioning  obedience  which  the  soldier 
yields,  as  a  matter  of  course,  to  the  commands  of 
his  superior  officer  must  alleviate,  if  it  do  not  wipe 
away,  the  guilt  of  the  members  of  the  Commission, 
in  the  forum  of  morals;  so  the  ascertainment  that 
the  sufferers  on  the  scaffold  and  in  prison,  in  fact, 
deserved  their  doom,  cannot  but  blunt  the  edge  of 
our  condemnation  of  the  iniquity  of  the  trial,  as  well 
as  weaken  our  pity  for  the  condemned  and  our  sense 
of  shame  over  the  tyrannous  acts  of  the  government. 

A  word  or  two,  therefore,  will  be  appropriate  in 
respect  to  the  sufficiency  of  the  testimony  to  estab 
lish  the  guilt  of  the  accused. 


HER   TRIAL    AND    EXECUTION.  139 

I.  As  to  Arnold  and  O'Laughlin,  it  may  be  said 
in  one  emphatic  word,  that  there  was  no  evidence 
at  all  against  them  of  complicity  in  the  plot  to  kill. 
The  letter  of  Arnold  to  Booth  shows,  when  fairly 
construed,  that,  if  the  writer  had  conspired  with  the 
actor,  he  conspired   to  abduct;    and,  also,  for  the 
time  being,  even  that  conspiracy  he  had  abandoned. 
He  was  at  Fort  Monroe  for  the  two  weeks  prior  to 
the  assassination.     His  confession,  used  on  the  trial 
against  himself  not  only  but  also  against  O'Laugh- 
lin  because  he  was  mentioned  in  it  as  present  at  a 
meeting  of  the  conspirators,  was  a  confession  only 
of  a  conspiracy  to  abduct  which  had  been  given  up. 
The  condemnation  of  these  two  men  was  brought 
about  by  the  conduct  of  Judge  Bingham,  to  which 
we  have  drawn  attention,  in  systematically  shutting 
his  eyes  to  the  existence  of  any  conspiracy  to  cap 
ture,   and   employing   the  letter  and  confession  as 
proof    that   both    these    men    were  guilty  of  con 
spiracy  to  murder. 

II.  As   to   Dr.    Mudd,    the   evidence  leaves    it 
doubtful  whether  or  not  he  recognized  Booth  under 
his  disguise  on  the  night  he  set  his  broken  leg,  and 
therefore  whether  he  may  have  been  an  accessory 
after  the  fact  or  not ;  but  the  testimony  of  the  in 
former  Weichman,  by  which  chiefly  if  not  solely 
the  prosecution  sought  to  implicate  the  doctor   in 
the  conspiracy  to  murder,  was  greatly  damaged,  if 
not  completely  broken  down,  by  the  proof  on  the 
part  of  the  defense  that  Dr.  Mudd  had  not  been  in 


140  MARY    E.    SURE  ATT. 

Washington  from   November  or  December,  1864, 
until  after  the  assassination. 

III.  As  to  Payne,  his  guilt  of  the   assault  on 
Seward   in   complicity  with   Booth   was  clear,  and 
confessed  by  himself.     He  was  but  twenty  years  of 
age,    of    weak   mind,    entirely   dominated   by   the 
superior  intellect  and  will  of  Booth.     He  claimed 
he  acted  under  the  command  of  his  captain.     He 
was  so  stolidly  indifferent  during  the  trial  as  to 
raise   suspicion    of    his   sanity,  and   he   repeatedly 
expressed  his  wish  for  the  termination  of  the  trial 
so  that  he  might  cease  to  live. 

IV.  As  to  the  boy  Herold,  it  was  manifest  that, 
as   the   mere   tool   and   puppet  of   Booth,  he  was 
acquainted  beforehand  with  the  design  of  his  master 
to  kill  the  President,  but  there  is  no  evidence  that 
he  aided  or  abetted  Booth  in  the  actual  assassination 
in  any  way  except  to  participate  in  his  flight  after 
he  had  got  out  of  Washington. 

V.  As  to  Atzerodt,  for  whom  there  appears  to 
have  been  no  pity  or  sign  of  relenting,  it  is  never 
theless  a  fact,  that  the  testimony  to  his  lying  in  wait 
for  Andrew  Johnson  is  so  feeble  as  to  be  almost 
farcical.       The  poor  German    was   a   coward    and 
never  went  near  Johnson.       There  is   no  circum 
stance  in   the  evidence  inconsistent   with  his  own 
confession,  that  he  was  in  the  plot  to  capture,  knew 
nothing  of  the  design  to  murder  until  8  o'clock  on 
the  evening  of  the  14th,  and  then  refused  to  enact 
the  part  assigned  him  by  Booth. 


HER   TRIAL   AND    EXECUTION.  141 

Indeed,  it  would  appear  as  if  the  Commission,  by 
a  sort  of  proleptic  vision  of  the  future  course  of  the 
President  in  his  desperate  struggle  with  the  Con 
gress,  in  grim  irony  actually  hung  Atzerodt  because 
he  did  not  kill  Andrew  Johnson. 

VI.  And  as  to  Mrs.  Surratt,  the  only  witnesses 
of  importance  against  her  are  Weichman  and 
Lloyd.  Without  their  testimony  the  case  for  the 
prosecution  could  not  stand  for  a  moment.  Weich 
man,  a  boarder  and  intimate  in  her  house,  the  col 
lege  chum  of  her  son,  and,  equally  with  him,  the 
associate  of  Payne,  Atzerodt,  Herold  and  Booth, 
who,  frightened  almost  to  death  at  the  outlook,  was 
swearing,  under  a  desperate  strain,  to  clear  his  own 
skirts  from  the  conspiracy  and  thus  save  his  threat 
ened  neck: — Weichman's  testimony  before  the 
Commission,  even  at  such  a  pass,  is  for  some  reason 
quite  vague  and  indefinite,  and  only  becomes  deadly 
when  supplemented  by  Lloyd's.  This  man  Lloyd 
it  was  who,  in  fact,  furnished  the  only  bit  of  evi 
dence  directly  connecting  Mrs.  Surratt  with  the 
crime.  He  testifies  to  two  conversations  he  had 
with  her — one  on  the  llth  and  the  other  on  the  14th 
of  April — when  she  alluded  to  the  weapons  left 
weeks  before  at  the  hotel  at  Surrattsville  owned  by 
her  and  kept  by  Lloyd — on  the  llth,  that  the 
" shooting-irons"  would  be  wanted  soon;  on  the 
14th,  that  they  would  be  called  for  that  night. 
Lloyd,  himself,  however,  admits,  and  it  is  otherwise 
clearly  shown,  that  on  the  14th  he  was  so  drunk  as 


142  MARY    E.    SURRATT. 

hardly  to  be  able  to  stand  up.  Lloyd,  also,  was 
deeply  implicated  in  the  conspiracy  to  capture  if  not 
to  assassinate.  He  had  aided  the  fugitive  assassins 
to  escape,  had  kept  their  weapons  hidden  in  his 
house,  and  he  had,  for  two  days  after  his  arrest, 
denied  all  knowledge  of  Booth  and  Herold's  stop 
ping  at  his  hotel  at  midnight  after  the  murder. 
He  had  been  placed  in  solitary  confinement  and 
threatened  with  death.  His  nervous  system,  under 
mined  by  debauchery,  gave  way ;  his  terrors  were 
startling  to  witness  and  drove  him  well-nigh  mad, 
and,  at  last,  in  a  moment  of  distraction,  he  turned 
against  Mrs.  Surratt  and  her  son.  Like  Weich- 
man's,  his,  also,  was  the  frenzied  effort  of  a  terror- 
stricken  wretch  to  avoid  impending  death  by  push 
ing  someone  forward  to  take  his  place.  Reverdy 
Johnson,  at  the  close  of  his  plea  to  the  jurisdiction 
of  the  court,  let  fall  the  following  words,  no  less 
weighty  for  their  truth  than  their  force : 

"This  conclusion  in  regard  to  these  witnesses  must  be,  in 
the  minds  of  the  Court,  and  is  certainly  strongly  impressed 
upon  my  own,  that,  if  the  facts  which  they  themselves  state 
as  to  their  connection  and  intimacy  with  Booth  and  Payne  are 
true,  their  knowledge  of  the  purpose  to  commit  the  crimes 
and  their  participation  in  them,  is  much  more  satisfactorily 
established  than  the  alleged  knowledge  and  participation  of 
Mrs.  Surratt." 

Moreover,  the  testimony  of  both  these  witnesses, 
suborned  as  they  were  alike  by  their  terrors  and 
their  hopes,  is  perfectly  reconcilable  with  the  alter- 


HER   TRIAL   AND    EXECUTION.  143 

native  hypothesis,  either  that  the  woman  in  what 
she  did  was  an  innocent  dupe  of  the  fascinating 
actor,  or  that  she  was  unaware  of  the  sudden  trans 
formation  of  the  long-pending  plot  to  capture,  of 
which  she  might  have  been  a  tacit  well-wisher,  into 
an  extemporaneous  plot  to  kill. 

Much  stress  was  laid  by  Mr.  Bingham  on  her 
solemn  denial  of  any  prior  acquaintance  with  Payne 
when  confronted  with  him  on  the  night  of  her 
arrest.  But  it  is  more  than  probable  that  the  non- 
recognition  was  unsimulated,  because  of  the  dis 
guise  and  pitiable  plight  of  the  desperado,  who  had 
been  hidden  in  the  mud  of  the  suburbs  three  days 
and  three  nights,  and,  also,  because  the  non-recog 
nition  was  shared  with  her  by  the  other  ladies  of 
the  house.  Besides,  that  a  woman,  caught  in  the 
toils  in  which  Booth  and  her  own  son  had  unwit 
tingly  involved  her,  under  the  terror  of  recent 
arrest  and  imminent  imprisonment,  should  have 
shrunk  from  any  acknowledgment  of  this  midnight 
intruder,  even  to  the  extent  of  falsehood,  certainly 
is  in  no  wise  incompatible  with  innocence. 

These  are  the  only  circumstances  by  which  Mrs. 
Surratt  is  brought  nearer  than  conjectural  connec 
tion  with  the  assassination,  and  the  force  of  these  is 
greatly  weakened  by  the  testimony  in  her  defense. 

It  is  neither  necessary,  nor  relevant  to  this  expo 
sition,  to  enter  into  a  lengthy  discussion  upon  the 
pros  and  cons  of  her  case.  Her  innocence  has  been 
demonstrated  in  a  more  decisive  manner  by  subse- 


144  MARY    E.    SURRATT. 

quent  events,  and  stands  tacitly  admitted  by  the 
acts  of  the  officers  of  the  government.  Few  impar 
tial  hearers  would  have  said  then,  and  no  impartial 
readers  will  say  now,  that  the  testimony  against  her 
is  so  strong  as  to  render  her  innocence  a  mere  fan 
ciful  or  even  an  improbable  hypothesis.  No  one 
can  say  that  a  jury,  to  a  trial  by  which  she  was 
entitled  under  the  Constitution,  would  have  pro 
nounced  her  guilty,  and  every  one  will  admit  that 
had  her  sentence  been  commuted  to  imprisonment 
for  life,  as  five  of  her  judges  recommended,  she 
would  have  been  pardoned  with  Arnold,  Spangler 
and  Mudd,  and  might  have  been  living  with  her 
daughter  to-day.  The  circumstances  of  the  whole 
tragedy  warrant  the  assertion  that,  had  John  H. 
Surratt  been  caught  as  were  the  other  prisoners,  he, 
and  not  she,  would  have  been  put  upon  trial ;  he, 
and  not  she,  would  have  been  condemned  to  death  ; 
he,  and  not  she,  would  have  died  by  the  rope.  If 
he  was  innocent,  then  much  more  was  she.  Mary 
E.  Surratt,  I  repeat,  suffered  the  death  of  shame, 
not  for  any  guilt  of  her  own,  but  as  a  vicarious 
sacrifice  for  the  presumed  guilt  of-  her  fugitive  son. 


PART    II. 

THE  VINDICATION. 


CHAPTER  I. 
SETTING  ASIDE  THE  VERDICT. 

WHEN  the  President  of  the  United  States, 
the  Secretary  of  War,  the  Military  Com 
mission,  the  Judge- Advocates,  and  the  Executioner- 
General  had  buried  the  woman  against  whose  life 
the  whole  military  power  of  the  Government,  fresh 
from  its  triumph  over  a  gigantic  rebellion,  had  been 
levelled  ; — buried  her  broken  body  deep  beneath  the 
soil  of  the  prison-yard,  in  close  contact  with  the 
bodies  of  confessed  felons;  flattened  the  earth  over 
her  grave,  replaced  the  pavement  of  stone,  locked 
the  door  of  entrance  to  the  charnel-house  and 
placed  the  key  in  the  keeping  of  the  stern  Secre 
tary  ; — they  may  have  imagined  that  the  iniquity 
of  the  whole  proceeding  was  hidden  forever. 

But,  horribile  dictu  !  the  ghost  of  Mary  E.  Sur- 
ratt  would  not  down.     It  troubled  the  breast  of  the 
10  145 


146  MARY    E.    SURRATT. 

witness  Weichman.  It  haunted  the  precincts  of  the 
Bureau  of  Military  Justice.  It  pursued  Bingham 
into  the  House  of  Representatives.  It  blanched 
the  laurels  of  the  great  War  Minister.  Politics, 
history  and  the  very  vicissitudes  of  human  events 
seemed  subservient  to  the  vindication  of  this  humble 
victim. 

Hardly  had  the  delivery  of  the  prisons  of  Wash 
ington,  which  followed  the  close  of  the  trial,  taken 
place,  before  the  man  who,  as  he  himself  swore, 
always  had  been  treated  as  a  son  by  the  woman  he 
betrayed,  began  to  make  advances  to  her  sorrowing 
friends.  He  pretended  to  make  confession  of  his 
perjury.  He  told  a  friend  that  his  testimony  would 
have  been  very  much  more  favorable  had  it  not 
been  dictated  to  him  by  the  officers  who  had  him 
in  charge;  that  the  meeting  of  Lloyd  and  Mrs. 
Surratt  was  accidental,  as  she  and  he  (Weichman) 
had  already  started  for  home  before  Lloyd  returned, 
and  only  turned  back  because  the  buggy  was  dis 
covered  to  be  broken.  The  traitor  soon  discovered 
that  he  made  no  headway  by  such  disclosures,  but 
only  met  with  a  sterner  repulse  and  a  deeper  loath 
ing.  His  troubled  soul  then  turned  to  another 
quarter.  It  has  been  stated  that  his  testimony  on 
the  trial  was  somewhat  indefinite  and  inconclusive. 
Complaints  had  been  uttered  by  the  officers  con 
ducting  the  prosecution.  It  was  proved  upon  a 
subsequent  occasion  that  one  of  these  officers  had 
actually  threatened  the  witness  that  he  would  hang 


HER   VINDICATION.  147 

as  an  accomplice  in  the  assassination  did  he  not 
make  his  evidence  more  satisfactory.  It  appeared, 
also,  that  the  Secretary  of  War  had  promised  to 
protect  and  take  care  of  him.  Driven  back  by 
Mrs.  Surratt's  friends  from  his  attempt  at  propitia 
tion,  \Yeiclmiau  resolved  that  he  would  yet  earn  his 
reward  by  retouching  his  former  testimony  so  as  to 
make  it  more  definite  and  telling.  He  saw,  at  last, 
that  to  save  himself  from  everlasting  ignominy  he 
must,  as  far  as  in  him  lay,  make  sure  of  the  guilt 
of  his  victim.  Actuated  by  these  or  similar 
motives,  he,  on  the  llth  day  of  August,  1865, 
wrote  out,  and  swore  to,  a  statement  in  which  he, 
by  a  suspicious  exercise  of  memory,  detailed  con 
versations  with  Mrs.  Surratt  and  significant  inci 
dents,  all  pointing  to  complicity  with  Booth,  no 
mention  of  which  had  been  made  on  the  trial,  and 
which  this  candid  witness  stated  "  had  come  to  my 
(his)  recollection  since  the  rendition  of  my  (his)  testi 
mony" 

This  affidavit,  containing  (if  true)  more  evidence 
of  the  guilt  of  Mrs.  Surratt  than  his  whole  testi 
mony  on  the  trial,  but,  on  the  other  hand,  drawn 
up  to  suit  himself  without  fear  of  cross-examina 
tion — he  transmitted  to  Colonel  Burnett,  who,  as 
though  he,  too,  distrusted  the  sufficiency  of  the 
evidence  against  the  dead  woman  as  it  had  been 
actually  given  on  the  trial,  was  careful  to  append 
the  ex  parte  statement  to  the  published  report. 


148  MARY   E.   SURRATT. 

Weichman,  at  length,  gets  his  reward  in  the 
shape  of  a  clerkship  in  the  Custom  House  at  Phila 
delphia. 

But  the  final  breaking  down  of  the  fabric  of  tes 
timony  against  the  leaders  of  the  rebellion,  as  insti 
gators  of  the  assassination,  threw  consternation  into 
the  Bureau  of  Military  Justice  and  the  Cabinet. 
Jefferson  Davis  was  still  confined  in  Fort  Monroe, 
and  two  companies  of  United  States  soldiers,  who 
had  fought  and  shed  each  other's  blood  in  their 
eagerness  to  be  the  first  to  seize  the  fugitive,  were 
already  quarreling  over  the  $100,000  reward  for 
his  arrest  as  an  accomplice  of  Booth.  Clement  C. 
Clay,  for  whose  arrest  $25,000  reward  had  been 
offered,  as  another  accomplice,  was  also  still  in  the 
hands  of  the  authorities.  Jacob  Thompson,  George 
N.  Sanders  and  Beverly  Tucker,  for  the  arrest  of 
each  of  whom  $25,000  had  been  offered,  were  still 
at  large.  Every  one  of  these  men,  it  should  be 
borne  in  mind,  had  been  pronounced  guilty  by  the 
military  board  which  had  condemned  Mrs.  Surratt. 
John  H.  Surratt,  her  son,  for  whose  capture  an 
enormous  reward  had  been  offered  both  by  the 
Government  and  by  the  City  of  Washington,  and 
whom  the  Military  Commission  had  condemned  as 
the  go-between  of  the  President  of  the  Confederacy 
and  his  agents  in  Canada  in  the  instigation  of  the 
murderous  conspiracy,  and  also  as  the  active  aider 
and  abettor  of  both  Booth  and  Payne  in  the  perpe 
tration  of  their  bloody  crimes ;  he,  too,  had  so  far 


HER   VINDICATION.  149 

eluded  all  efforts  to  find  even  his  whereabouts.  It 
is  only  fair  to  presume  that  the  astute  lawyers  con 
nected  with  the  Bureau  of  Military  Justice  must 
have  had  serious  misgivings  from  the  first,  concern 
ing  the  testimony  of  the  spies,  Montgomery,  Con- 
over  and  others,  going  to  implicate  Davis  and  the 
Canadian  Rebels  in  the  assassination.  Such  testi 
mony  was  hearsay  or  secondary  evidence  at  best ; 
and  they  could  have  cherished  no  hope  that  such 
loose  talk  and  the  fragmentary  repetition  of  letters 
heard  read  would  ever  be  allowed  to  pass  muster  by 
an  impartial  judge  in  a  civil  court.  And  they  had 
reason  to  believe  that  public  opinion  would  not 
tolerate  the  experiment  of  another  military  com 
mission.  As  early  as  July,  1865,  an  attempt  was 
made  to  buy  the  papers  of  Jacob  Thompson,  among 
which  it  was  supposed  were  the  criminatory  letters 
of  Davis ;  and  Attorney-General  Speed  was  dis 
patched  with  $10,000  government  money  to  effect 
the  purchase.  William  C.  Cleary,  for  whom 
$10,000  reward  had  been  offered  as  one  of  the  con 
spirators,  and  who  had  just  been  found  guilty  by 
the  Military  Commission,  was  to  deliver  the  letters 
and  receive  the  money.  Speed  met  Cleary  at  the 
Clifton  House,  but  the  latter,  in  the  meanwhile,  had 
seen  in  a  newspaper  a  portion  of  the  testimony 
before  the  Military  Commission  implicating  him, 
and  he  utterly  refused  to  give  up  the  papers,  as  he 
had  to  rely  upon  them,  as  he  said,  to  vindicate  him 
self.  The  shadows  thus  began  to  darken  over  the 


150  MARY   E.    SURRATT. 

credibility  of  the  corps  of  spies  that  the  Bureau 
had  employed.  Indictments  for  perjury  against 
Montgomery,  Conover  and  other  paid  witnesses 
began  to  be  talked  of.  Friends,  and  enemies  as 
well,  of  the  imprisoned  ex-President  began  to 
clamor  for  his  trial  or  release.  Even  the  implicated 
agents  in  Canada  showed  a  bold  front,  and  pro 
fessed  a  willingness  to  meet  the  terrible  charge  if 
guaranteed  a  trial  by  jury.  A  jury  !  A  jury  of 
twelve  men  !  Trial  by  jury !  If  there  was  any 
thing  that  could  shake  the  souls  of  the  members  of 
the  Bureau  of  Military  Justice,  it  was  to  hear  of 
trial  by  jury.  It  was  a  damnable  institution.  It 
impeded  justice.  It  screened  the  guilty.  It  was 
beyond  control.  It  could  not  be  relied  on  to  con 
vict.  And  yet  it  was  to  this  tribunal  they  foresaw 
they  must  come. 

In  September,  1865,  embarrassing  news  arrived 
at  the  Department  of  State.  The  consul  at  Liver 
pool  informed  the  American  Minister  at  London 
that  John  H.  Surratt  was  in  England  and  could  be 
extradited  at  any  time.  Here  was  the  villain  who 
was,  with  Booth,  the  prime  mover  of  the  con 
spiracy  and  the  active  accomplice  of  Booth  and 
Payne  in  their  work  of  blood.  At  least,  so  the 
Military  Commission  found,  who  hung  his  mother 
in  his  stead.  And  yet  the  United  States  Govern 
ment  informed  Mr.  Adams,  and  Mr.  Adams  so 
informed  the  consul,  that  the  Government  did  not 
intend  to  prosecute.  On  the  24th  of  November 


HER   VINDICATION.  151 

ensuing,  the  War  Department,  by  general  order, 
revoked  the  "  rewards  offered  for  the  arrest  of  Jacob 
Thompson,  Beverly  Tucker,  George  N.  Sanders, 
William  S.  Cleary  and  John  H.  Surratt."  Where 
now  was  the  redoubtable  Bingham  who,  over  and 
over  again,  had  assured  the  Commission  he  guided 
of  the  unmistakable  guilt  of  all  these  persons? 
The  whole  theory  of  the  Secretary  of  War,  which 
he  had  preconceived  in  the  midst  of  the  panic  fol 
lowing  the  assassination,  that  the  murder  of  the 
President  was  the  outcome  of  a  deep-laid  and  wide 
spread  conspiracy,  of  which  Jefferson  Davis  was, 
the  head  and  Booth  and  Payne  the  bloody  hands — 
this  theory,  which  the  Bureau  of  Military  Justice, 
aided  by  Baker  and  his  detectives,  had  so  sedulously 
labored  to  establish,  and  which  Judge  Bingham  had 
so  persistently  pressed  upon  the  nine  military  men 
who  composed  the  Court,  to  the  exclusion  of  any 
such  hypothesis  as  a  plot  to  capture — this  precon 
ceived  theory  all  at  once  fell  to  the  ground.  The 
perjured  spies,  who  had  been  the  willing  and  paid 
tools  to  build  it  up,  were  about  to  be  unmasked  and 
their  poisoned  fangs  drawn.  After  no  great  interval, 
Conover  was,  in  fact,  convicted  of  perjury  in  another 
case,  and  sentenced  to  imprisonment  in  the  Albany 
penitentiary.  The  whole  prosecution  of  the  so- 
called  conspirators,  from  its  inception  to  its  tragic 
close,  turned  out  to  have  been  founded  on  an  enor 
mous  blunder.  The  findings  of  the  Commission 
were  falsified.  Whatever  the  guilt  of  the  doomed 


152  MARY    E.    SURRATT. 

victims,  they  were  not  guilty  of  the  crime  of  which 
they  were  convicted.  The  terrible  conspiracy, 
stretching  from  Richmond  to  Canada,  and  from 
Canada  back  to  Washington,  involving  statesmen 
and  generals,  and  crowning  the  wickedness  of  rebel 
lion  with  the  Medusa-head  of  assassination,  shrank 
into  the  comparatively  common-place  and  isolated 
offense  of  the  murder  of  Lincoln  and  the  assault 
upon  Seward,  suddenly  concocted  by  Booth,  on  the 
afternoon  of  the  14th  of  April,  in  wild  despair  over 
the  collapse  of  the  rebellion.  In  such  a  predica- 
rment,  the  hanging  of  Mrs.  Surratt  could  not  have 
been  a  pleasing  reminiscence  to  the  Secretary  of 
War,  to  Judge- Advocate  Holt,  or  to  the  hangers-on 
of  the  Bureau  of  Military  Justice.  At  such  a 
moment  they  certainly  had  no  use  for  her  son  John. 
On  the  12th  of  November,  Preston  King,  who 
held  one  side  of  the  door  of  the  White  House  while 
the  daughter  of  Mrs.  Surratt  pleaded  for  admission, 
walked  off  a  ferry-boat  into  the  Hudson  River,  with 
two  bags  of  shot  in  the  pockets  of  his  overcoat,  and 
was  seen  no  more.  This  event  might  have  passed 
as  a  startling  coincidence,  to  be  interpreted  accord 
ing  to  the  feelings  of  the  hearer,  had  it  not  been 
followed  by  the  suicide  of  Senator  James  S.  Lane, 
who  held  the  other  side  of  the  door,  and  who,  on 
the  llth  day  of  July,  1866,  blew  his  brains  out  on 
the  plains  of  Kansas.  That  these  two  men  had 
together  stood  between  the  President  and  the  filial 
suppliant  for  mercy,  in  a  case  of  life  and  death, 


HEK   VINDICATION.  153 

and  that,  then,  within  a  year,  both  had  perished  by 
their  own  hands,  aroused  whispers  in  the  air,  caused 
a  holding  of  the  breath  and  a  listening,  as  if  to 
catch  the  faint  but  increasing  cry  of  innocent  blood, 
coming  up  from  the  ground. 

When  the  Congress  met  in  December,  1865,  the 
leaders  of  the  dominant  party  were  in  a  fierce  and 
bitter  humor.  The  Rebellion  had  been  suppressed, 
the  South  subjugated  and  its  chiefs  captured,  yet  no 
one — not  even  the  arch-traitor  Davis — had  been 
hung.  And,  more  deeply  exasperating  still,  the 
man  they  had  elected  Vice-President,  and  who  had 
thus  succeeded  the  martyred  Lincoln,  upon  whom 
their  hopes  had  been  fixed  to  make  treason  odious, 
to  hang  the  leaders  higher  than  Haman,  and  to  set 
aside  the  humane  policy  of  reconstruction  his  pre 
decessor  had  already  outlined  and  substitute  a  more 
radical  and  retributive  method — this  man,  whose 
precious  life  had  been  providentially  spared  from 
the  pistol  of  the  assassin  to  be  the  Moses  of  the 
colored  people,  and  for  harboring  any  such  blas 
phemous  purpose  as  lying  in  wait  for  him,  a  Court, 
appointed  by  himself  and  whose  sentence  he  himself 
had  approved,  had  hung  a  bewildered  German — 
why  this  man  had  already  shown  himself  a  rene 
gade,  was  bent  on  a  general  amnesty,  appeared  to 
have  forgotten  the  assassination,  was  already  hob 
nobbing  with  southern  traitors,  and  was  attempting 
to  carry  out  a  policy  of  reconstruction  in  the  South, 
the  result  of  which  could  be  nothing  less  than  the 


154  MARY    E.   SURRATT. 

dethronement  of  the  party  who  had  brought  the 
war  for  the  Union  to  a  triumphant  end.  These 
men  resolved  that  such  treachery  should  be  balked 
at  whatever  cost.  Ignorant  as  yet  of  the  tainted 
character  and  of  the  break-down  of  the  evidence 
adduced  to  show  Confederate  complicity  in  the 
assassination,  the  House  of  Representatives  passed 
resolutions  calling  for  the  trial  of  Jefferson  Davis 
for  treason  and  for  the  other  crimes  with  which  he 
was  charged ;  the  ill-starred  Bingham,  once  again 
in  the  House,  insisting  that  the  Confederate  Chief 
should  be  put  upon  trial  before  a  military  tribunal 
for  the  same  offense  of  which  his  former  court  had 
found  him  guilty  in  his  absence.  The  House 
appointed  a  committee  to  investigate  the  complicity 
of  Davis  and  others  in  the  assassination,  and  in 
July,  1866,  through  its  chairman,  Mr.  Boutwell, 
made  a  report,  followed  by  a  resolution,  "  that  it  is 
the  duty  of  the  executive  department  of  the  Gov 
ernment  to  proceed .  with  the  investigation  of  the 
facts  connected  with  the  assassination  of  the  late 
President  without  unnecessary  delay,  that  Jefferson 
Davis  and  others  named  in  the  proclamation  of 
President  Johnson  of  May  2d,  1865,  may  be  put 
upon  trial/7  which  was  adopted  nem.  con.  In  this 
action,  little  as  they  recked,  these  radical  politicians 
were  the  unconscious  tools  of  that  Nemesis  which 
stalks  after  lawlessness  and  triumphant  crime. 
This  resolution,  and  the  news  that  John  H.  Surratt 
had  been  betrayed  by  one  of  his  comrades  in  the 


HER   VINDICATION. 


155 


Papal  Zouaves  into  the  hands  of  the  Roman  authori 
ties,  who  had  detained  him  to  await  the  order  of  the 
American  Government,  and  that  the  prisoner  had 
escaped  from  his  guard  and  fled  to  Malta,  forced 
the  Department  of  War  to  revoke  the  order  of 
November,  1865,  withdrawing  the  reward  for  the 
arrest  of  the  fugitive. 

Meanwhile  the  great  contest  over  the  reconstruc 
tion  of  the  South  waxed  fiercer  and  fiercer.  Con 
gress,  during  this  session,  became  farther  and 
farther  alienated  from  the  President,  so  that  when 
that  body  met  in  December,  1866,  the  reckless 
majority  in  both  Houses  united  in  the  resolve  to 
get  rid  of  Andrew  Johnson,  not  indeed  by  the 
bloody  method  employed  by  Booth,  but  by  the  no 
less  efficient,  though  more  insidious  and  less  bold, 
expedient  of  impeachment  by  the  House  and  con 
viction  by  the  Senate.  No  sooner  had  Congress 
convened  than  Mr.  Boutwell  made  an  attack  upon 
the  Executive  for  its  dilatory  action  in  the  arrest  of 
John  H.  Surratt,  stating  that  he  had  reason  to 
believe  that  the  Government  knew  where  the 
assassin  was  the  May  before.  A  committee  appointed 
to  investigate  the  matter  made  a  report  just  at  the 
close  of  the  session  obliquely  censuring  the  Execu 
tive  Department  for  its  lack  of  diligence  in  effecting 
the  arrest.  On  January  7th,  1867,  the  famous 
Ashley  introduced  his  resolutions  impeaching 
Andrew  Johnson.  The  Judiciary  Committee,  to 
which  they  were^  referred,  took  testimony  during 


156  MARY   E.    SURRA TT. 

the  winter  and  made  a  report  at  the  close  of  the 
session  that  it  was  unable  to  complete  the  investiga 
tion,  and  handed  it  over  to  the  Fortieth  Congress. 
That  Congress  met  immediately  at  the  close  of  the 
Thirty-ninth,  and  the  testimony  already  taken  was 
referred  to  the  Judiciary  Committee  of  its  House, 
which  proceeded  with  the  matter  during  the  spring 
and  summer,  and  in  November,  1867,  after  the 
recess;  with  the  final  result  of  a  failure  to  pass  the 
resolution  of  impeachment  reported  by  a  bare 
majority  of  the  committee. 

In  process  of  this  investigation  all  sorts  of  accu 
sations  and  charges  were  made  against  the  Presi 
dent.  His  enemies  now  employed  the  very  same 
weapons  against  him  which  had  been  employed  to 
convict  the  alleged  assassins  of  his  predecessor  and 
the  alleged  conspirators  against  his  own  life.  Gen 
eral  Baker  and  his  detectives,  Conover  and  his 
allies,  appear  once  more  upon  the  scene.  They 
actually  invaded  the  privileged  quarters  of  the 
White  House  and  stationed  spies  in  the  very  private 
apartments  of  the  President.  This  time,  however, 
they  are  ready  to  swear,  and  in  fact  do  swear,  not 
to  having  seen  letters  from  Jefferson  Davis  to  his 
agents  in  Canada  advising  assassination,  but  letters 
from  Andrew  Johnson  to  Davis  squinting  in  that 
direction.  They  actually  charged  the  President 
with  being  an  accomplice  in  the  assassination  of 
Abraham  Lincoln.  Forgetting  that  a  human  being 
had  been  hung  for  lying  in  wait  to  kill  Andrew 


HER   VINDICATION.  157 

Johnson  as  a  part  of  a  general  conspiracy  to  murder 
the  heads  of  the  Government,  these  desperate  men 
propose  to  impeach  the  President  for  being  an 
accomplice  in  his  own  attempted  murder.  Ashley 
openly  denounced  him,  in  the  House  of  Representa 
tives  on  the  7th  of  March,  1867,  as  "the  man  who 
came  into  the  Presidency  through  the  door  of  assas 
sination,"  and  alluded  to  the  "dark  suspicion  which 
crept  over  the  minds  of  men  as  to  his  complicity  in 
the  assassination  plot,"  and  "  the  mysterious  con 
nection  between  death  and  treachery  which  this  case 
presents."  Ashley  had  private  interviews  in  the 
jail  with  Conover  and  Cleaver,  who  were  confined 
there  for  their  crimes,  and  they  assured  him  of  the 
guilt  of  Andrew  Johnson.  They  furnished  him 
with  memoranda  and  letters  purporting  to  show 
that  Andrew  Johnson  and  Booth  were  in  communi 
cation  with  each  other  before  the  murder  of  Lincoln, 
and  that  Booth  had  said  before  his  death  that  if 
Andrew  Johnson  dared  go  back  on  him  he  would 
have  him  hung  higher  than  Haman.  To  such  pre 
posterous  stuff,  from  professional  perjurers,  did  the 
zealous  Ashley  seriously  incline. 

It  was  during  this  investigation  that  the  evidence 
given  by  Secretaries  Seward  and  Stanton  and  by 
Attorney-Generals  Speed  and  Stansbery,  demon 
strated  the  utter  futility  of  an  attempt  to  establish 
complicity  in  the  assassination  on  the  part  of  Davis, 
Thompson  and  the  rest,  by  witnesses  who  had  been 


158  MARY    E.    SURRATT. 

shown,  in  other  cases,  to  be  unworthy  of  a  moment's 
belief. 

While  the  impeachers  were  in  the  very  act  of 
pursuing  the  President  as  an  accomplice  in  the 
murder  of  Abraham  Lincoln,  while  the  mighty  Bing- 
ham.  who  had  so  eloquently  defended  President 
Johnson  before  the  Military  Commission  against 
the  charge  of  usurpation  of  power,  and  so  bitterly 
denounced  Jefferson  Davis  for  alluding  to  Johnson 
as  "  The  Beast,"  now,  with  a  complete  change  of 
tune,  was  clamoring  for  the  impeachment  of  "  his 
beloved  Commander-in-Chief;" — Jefferson  Davis, 
himself,  is  brought,  by  direction  of  the  Secretary  of 
War,  in  obedience  to  a  writ  of  habeas  corpus,  before 
the  United  States  Court  at  Richmond ;  there,  with 
out  a  word  of  remonstrance,  transferred  to  the  cus 
tody  of  the  civil  authority ;  and  forthwith  dis 
charged  on  bail,  Horace  Greeley,  who  had  never 
seen  him  before,  becoming  one  of  his  bondsmen. 
Since  that  day  in  May,  1867,  no  attempt  has  ever 
been  made  to  call  the  ex- President  of  the  Southern 
Confederacy  to  account  as  one  of  the  conspirators  in 
the  murder  of  Lincoln.  Clay  had  been  let  go  on 
parole  as  long  before  as  April  19th,  1866;  his 
property  was  restored  to  him  in  February,  1867; 
and  proceedings  under  an  indictment  found  against 
him  for  treason  and  conspiracy,  indefinitely  sus 
pended  on  the  26th  of  March  of  the  same  year. 
Thompson  and  Sanders  and  Tucker  returned  to 
their  country  and  appeared  unmolested  amongst  us. 


HER   VINDICATION.  159 

Jefferson  Davis  died  recently  full  of  years  and 
honors.  At  the  death  of  Thompson,  the  flags  of 
the  Interior  Department  were  lowered  half-mast. 
Tucker  was  appointed  to  office  not  long  ago  by 
President  Harrison.  And  all  this,  notwithstanding 
the  Judge- Advocate  had  assured  the  Military  Com 
mission  that  the  guilt  of  these  men  was  as  clear  as 
the  guilt  of  Booth  or  of  Surratt,  notwithstanding 
the  Military  Commission  under  his  guidance  so 
found,  and,  had  these  men  been  present  before  that 
tribunal,  would  doubtless  have  hung  them  on  the 
same  scaffold  with  Mrs.  Surratt. 

It  was  during  this  same  investigation,  that  the 
diary  of  Booth,  which  had  been  so  carefully  con 
cealed  by  the  War  Department  and  the  Bureau  of 
Military  Justice  from  the  Military  Commission, 
was  unearthed.  Its  publication  produced  a  pro 
found  sensation,  as  it  made  clear  the  reality  of  a 
plan  to  capture  the  President ;  a  plan,  which  had 
been  blasted  by  the  collapse  of  the  Rebellion  and, 
only  at  the  last  moment  and  without  consultation, 
arbitrarily  superseded  by  a  hurried  resolution  to 
kill.  When  produced  by  Judge  Holt  before  the 
committee,  its  mutilated  condition  gave  rise  to  a 
terrible  suspicion.  Holt,  himself,  and  Stanton  were 
confident  the  book  was  in  the  same  condition  as 
when  they  first  saw  it.  Colonel  Conger,  also, 
though  not  positive,  thought  it  was  unchanged 
since  he  took  it  from  the  dead  body  of  Booth.  But, 
to  the  great  wonder  of  everybody,  the  distinguished 


160  MARY   E.    SURRATT. 

detective,  General  Baker,  testified,  and  stuck  to  it 
with  emphasis  when  recalled,  that,  when  he  first 
examined  the  diary  before  it  was  lodged  with  the 
Secretary  of  War,  there  were  no  leaves  missing  and 
no  stubs,  although  the  diary,  as  exhibited  to  the 
committee,  showed  by  means  of  the  stubs  remaining 
that  sixteen  or  twenty  leaves  had  been  cut  or  torn 
out.  The  disclosures  made  by  the  production  of 
the  diary,  together  with  the  fact  of  its  suppression, 
stirred  the  soul  of  General  Butler;  and,  in  this 
way,  it  came  about  that  the  ghost  of  Mrs.  Surratt 
stalked  one  day  into  the  House  of  Representatives. 
Judge  Bingham,  in  his  rollicking  way,  was  up 
braiding  General  Butler  for  having  voted  for  Jeffer 
son  Davis  fifty  times  as  his  candidate  for  President, 
and  slurring  his  war  record  by  calling  him  "the 
hero  of  Fort  Fisher ; "  when,  suddenly,  at  the 
petrific  retort  of  his  adversary  that  "  the  only  victim 
of  the  gentleman's  prowess  was  an  innocent  woman 
hung  upon  the  scaffold!"  the  spectre  stood  before 
him,  forcing,  as  from  "  white  lips  and  chattering 
teeth,"  the  exclamation  of  Macbeth  :  "  Thou  canst 
not  say  I  did  it !  " 

"  Look  to  the  true  and  brave  and  honorable  men 
who  found  the  facts  upon  their  oaths  and  pro 
nounced  the  judgment!"  he  retorted,  clutching  at 
the  self-soothing  sophistry  of  the  murderer  of 
Banquo,  ignoring  the  fact  that  he  himself  was  a 
part  of  the  tribunal  and  virtually  dictated  the 
judgment. 


HER   VINDICATION.  161 

Another  discovery  was  made  by  the  Judiciary 
Committee  in  the  "  Article  "  which,  as  recorded  in 
his  diary,  Booth  had  left  behind  him  for  publication 
in  the  National  Intelligencer.  John  Matthews,  a 
fellow  actor  and  an  intimate  friend  of  the  assassin, 
testified  that  on  the  afternoon  of  the  14th  of  April 
Booth  had  met  him  in  the  street  and  left  with  him 
a  letter  directed  to  that  newspaper,  to  be  delivered 
in  the  morning.  The  witness  was  on  the  stage  of 
the  theatre  that  night  at  the  time  the  fatal  shot  was 
fired,  and,  in  the  confusion  that  followed,  he  called 
to  mind  the  communication.  Hurrying  to  his  lodg 
ings  he  opened'  the  envelope,  read  the  letter,  and, 
fearing  to  be  compromised  by  the  possession  of  such 
a  document,  burnt  it  up.  The  substance  of  the 
letter,  as  near  as  Matthews  could  recollect,  was  that 
for  a  long  time  he  (Booth)  had  devoted  his  money, 
time  and  energies  to  the  accomplishment  of  an  end, 
but  had  been  baffled.  "  The  moment  has  at  length 
arrived  when  my  plans  must  be  changed.  The 
world  may  censure  me  for  what  I  do ;  but  I  am 
sure  that  posterity  will  justify  me."  And  the 
communication  was  signed  (all  the  names  being  in 
the  hand-writing  of  Booth)  :  "Men  who  love  their 
country  better  than  gold  or  life.  J.  W.  Booth, 
Payne,  Atzerodt,  Herold." 

The  significance  of  this  piece  of  testimony  was 
negative.     The  name  of  Surratt  was  not  there. 

One  suggestive  circumstance  was  called  out  in  the 
testimony  of  Secretary  Seward  and  General  Eckert. 
11 


162  MAKY    E.    SURRATT. 

It  appeared  that  Payne  before  his  trial  had  talked 
with  General  Eckert  about  his  motives  and  move 
ments  in  the  assault  upon  the  disabled  Secretary  of 
State,  the  particulars  of  which  conversation  Eckert 
had  related  to  Seward,  after  the  recovery  of  the 
latter  from  his  wound,  and  had  promised  to  reduce 
to  writing.  Among  other  things,  Payne  had  said 
that  he  and  Booth  were  in  the  grounds  in  front  of 
the  White  House  on  the  night  of  Tuesday,  the  llth 
of  April,  when  Abraham  Lincoln  made  his  speech 
of  congratulation  on  the  fall  of  Richmond  and  the 
surrender  of  Lee ;  and  that  on  that  occasion  Booth 
tried  to  persuade  him  to  shoot  the  President  as 
he  stood  in  the  window,  but  that  he  would  take 
no  such  risk ;  and  that  Booth,  turning  away, 
remarked :  "  That  is  the  last  speech  he  will  ever 
make." 

Such  an  incident  is  consistent  only  with  the 
theory  that  the  assassination  plot  was  concocted  at 
the  last  moment  as  a  forlorn  hope,  and  that,  if  there 
had  been  any  conspiracy,  it  was  a  conspiracy  to 
capture.  It  is  easy  to  see  why  the  Bureau  of  Mili 
tary  Justice  suppressed  this  testimony  also,  because, 
although  it  bears  hard  upon  Payne  himself,  and 
Herold,  and  possibly  John  Surratt,  it  renders  it 
highly  improbable  that  Mrs.  Surratt  was  aware  of 
any  design  to  kill. 

Even  such  a  fragmentary  review,  as  the  foregoing, 
of  the  public  history  of  the  two  years  succeeding 
the  execution — which  any  reader  may  complete,  as 


HER   VINDICATION.  163 

well  as  test,  for  himself  by  referring  to  the  Con 
gressional  Globe  of  that  period,  to  the  printed 
reports  of  the  Committee,  and  to  the  leading  news 
papers  of  the  day — is  sufficient  to  indicate  how  the 
general  tendency  of  events,  and  every  event  in  its 
place,  appear  to  have  conspired  to  the  accomplish 
ment  of  one  result, — the  setting  aside,  in  the  public 
mind,  of  the  verdict  of  the  Military  Commission  in 
the  case  of  Mrs.  Surratt. 

This  was  not  done  by  a  direct  assault  upon  that 
tribunal,  or  upon  its  mode  of  procedure ;  not  even 
upon  the  character  of  the  witnesses  against  the  par 
ticular  culprit,  nor  upon  the  weakness  of  the  case 
made  against  her.  These  points  of  attack  were  all 
passed  by,  and  the  verdict  was  taken  on  the  flank. 
The  condemnation  of  the  woman  was  subverted 
by  the  wind,  so  to  speak,  of  passing  events. 

The  irrepressible  conflict  between  the  President 
and  the  Congress  ;  the  consequent  schism  in  the 
very  ranks  of  the  triumphant  conquerors ;  the 
insane  charge  against  Andrew  Johnson  of  com 
plicity  in  a  conspiracy  against  his  own  life,  sup 
ported  by  the  incredible  statements  of  the  very 
witnesses  who  were  responsible  for  the  charge  of 
complicity  against  Jefferson  Davis  and  others ;  the 
final  and  complete  exposure  of  the  fiction  of  a  con 
spiracy  to  assassinate,  either  by  the  Confederate 
authorities,  or  anybody  else ;  and  the  true,  historical 
character  of  the  Assassination  of  Abraham  Lincoln  ; 
— all  combined  to  shake  the  edifice  of  guilt,  which 


164  MARY   E.    SURRATT. 

the  Bureau  of  Military  Justice  had  so  carefully 
built  up  around  their  helpless  victim,  upon  such  an 
aerial  foundation.  Whilst  the  gradual  abatement 
of  that  furious  uncharitable  ness,  which  in  the  hey 
day  of  the  war  could  find  nothing  not  damnable  in 
the  Southern  people,  and  no  secessionist  who  was 
not  morally  capable  either  of  murder  or  of  perjury 
in  its  defense  or  concealment,  was,  surely  but  imper 
ceptibly,  clearing  up  the  general  atmosphere  of  public 
opinion,  and  thus  preparing  for  the  cordial  reception 
of  such  a  measure  of  retributive  justice,  as  Time, 
with  his  sure  revenges,  was  daily  disclosing  to  be 
more  and  more  inevitable. 

The  Milligan  decision  dissipated  the  technical 
jurisdiction  of  the  Commission.  But  lawyers  could 
still  distinguish,  and  the  hyperloyal  could  still  main 
tain  the  essential  rightfulness  of  the  verdict. 

But  the  explosion  of  the  great  assassination  con 
spiracy  ;  the  nol-pros.  of  the  awful  charge  against 
Jefferson  Davis,  Clement  C.  Clay,  Jacob  Thompson, 
and  their  followers — a  crime,  which,  if  capable  of 
proof,  no  government  on  earth  would  have  dared  to 
condone — discredited  forever  the  judgment  of  the 
Military  Commission,  reopened  wide  all  questions 
of  testimony,  of  character,  of  guilt  or  innocence, 
and  summoned  the  silent  and  dishonored  dead  to  a 
new  and  benignant  trial. 


CHAPTER  II. 
REVERSAL  UPON  THE  MERITS. 

THE  new  trial  was  in  fact  at  hand.  In  the 
summer  of  the  year  1867,  the  interest  ex 
cited  by  the  investigation  of  the  Judiciary  Com 
mittee  of  the  House  of  Representatives,  referred  to 
in  the  last  chapter,  suddenly  became  merged  into 
the  intenser  and  more  widespread  interest  excited 
by  the  trial  of  John  H.  Surratt  in  the  Criminal 
Court  of  the  District  of  Columbia. 

Surratt,  after  escaping  from  his  captors  in  Italy 
by  leaping  down  a  precipice,  fled  to  Malta  and 
thence  to  Alexandria,  where,  on  the  21  st  of  Decem 
ber,  1866,  he  was  recaptured  and  taken  on  board 
the  United  States  vessel  "Swatara."  In  this  vessel, 
bound  hand  and  foot,  the  prisoner  arrived  at  Wash 
ington  on  the  21st  of  February  following.  Thus 
the  radicals  in  Congress,  impelled  by  their  growing 
enmity  to  the  President  over  the  reconstruction  con 
test,  by  scattering  abroad  sinister  intimations  that 
the  cause  of  his  remissness  in  bringing  to  punish 
ment  the  accomplices  of  the  convicted  assassins  was 
fear  for  himself  of  a  full  investigation  of  the  assas 
sination,  succeeded  at  last  in  forcing  the  Executive 

165 


166  MARY   E.    SURRATT. 

Department,  apprehensive,  as  it  had  good  reason  to 
be,  of  the  shadows  which  any  future  trial  in  the 
civil  courts  was  likely  to  reflect  back  upon  the 
Military  Commission,  and  aware  of  the  breaking 
down  of  the  case  against  the  Canadian  confederates 
and  Jefferson  Davis,  face  to  face  with  the  necessity 
of  ratifying  the  conviction  of  the  mother  by  securing 
the  conviction  of  the  son.  On  the  one  hand,  the 
radicals,  in  blind  ignorance  of  the  true  inwardness 
of  affairs,  clamored  for  the  trial,  in  the  hope  that 
the  guilt  of  the  prisoner's  supposed  accomplices, 
Davis  and  Company,  and  possibly  of  the  President 
himself,  might  be  detected.  On  the  other  hand,  the 
administration,  now  that  the  man  had  been  forced 
upon  its  hands,  knowing  the  futility  of  the  hope  of 
its  enemies,  pushed  on  the  trial  in  the  hope  that, 
with  its  powerful  appliances,  a  result  could  be 
obtained  which  would  vindicate  the  verdict  of  the 
Military  Commission.  No  one  on  either  side,  how 
ever,  so  much  as  dreamed  of  renewing  the  iniquity 
of  a  trial  by  court-martial.  Amid  the  silence  of 
the  Holts  and  the  Binghams  and  the  Stantons,  Sur- 
ratt  was  duly  indicted  by  a  grand  jury  for  the 
murder  of  "  one  Abraham  Lincoln/'  and  for  con 
spiring  with  Booth,  Payne,  Atzerodt,  Herold  and 
Mary  E.  Surratt  to  murder  "one  Abraham  Lin 
coln,"  which  conspiracy  was  executed  by  Booth. 
There  was  no  averment  about  the  traitorous  con 
spiracy  to  murder  the  heads  of  Government,  in 
aid  of  the  rebellion ;  nor  were  the  names  of  Dr. 


HER   VINDICATION.  167 

Mudd,  O'Laughlin,  Arnold  or  Spangler,  then 
undergoing  punishment  on  the  Dry  Tortugas,  in 
serted  as  parties  to  the  conspiracy ;  nor  was  any 
mention  made  of  Seward  or  Johnson  or  Grant,  as 
among  the  contemplated  victims.  All  was  precise 
and  perspicacious,  as  is  required  in  pleadings  in  the 
civil  courts.  The  loose,  vague,  indefinite  and 
impalpable  charges  permissible,  seemingly,  on  mili 
tary  trials,  gave  place  to  plain  and  simple  allega 
tions,  such  as  an  accused  person  might  reasonably 
be  expected  to  be  able  to  meet.  On  Monday,  June 
10, 1867,  while  the  investigation  before  the  Judiciary 
Committee  of  the  House  was  still  going  on,  while 
the  sensation  produced  by  the  sight  of  Booth's  diary 
and  by  Matthews7  disclosures  was  still  fresh,  while 
the  echoes  of  the  encounter  of  Bingham  and  Butler 
still  lingered  in  the  air,  the  momentous  trial  came 
on.  Great  and  unprecedented  preparations  had 
been  made  by  the  prosecution.  Again  the  country 
was  ransacked  for  witnesses,  as  in  the  palmy  days 
of  Baker  and  his  men.  Again  the  Montgomeries 
and  other  Canada  spies  haunted  the  precincts  of  the 
District  Attorney's  office,  willing  as  ever  to  swear 
to  anything  necessary  to  make  out  the  case  for  the 
prosecution.  Even  the  voice  of  Conover  was  heard, 
de  profundis  clamavi,  from  his  dungeon  cell.  The 
Bureau  of  Military  Justice  started  into  active  life, 
and  Holt  and  his  satellites  bestirred  themselves  as 
though  fully  conscious  of  the  impending  crisis. 
Indeed,  every  one  of  these  officials,  from  the  Presi- 


168  MARY    E.    SURRATT. 

dent  and  the  Secretary  of  War  down  to  the  meanest 
informer  and  hired  hangman,  who  had  had  anything 
to  do  with  the  trial  and  execution  of  Mary  E.  Sur- 
ratt,  felt  as  if  he,  too,  was  to  be  put  on  trial  in  the 
trial  of  her  son.  A  Court  recognized  in,  and  draw 
ing  its  life  and  jurisdiction  from,  the  Constitution 
was  to  act  as  a  court  of  appeal  to  review  the  pro 
cess  and  judgment  of  that  extra-constitutional 
tribunal,  which  had,  summarily  and  without  legal 
warrant,  put  a  free  American  woman  to  a  felon's 
death.  A  Daniel  in  the  shape  of  a  jury — a  com 
mon  law  jury — a  jury  of  civilians — unadorned  by 
sword,  epaulette  or  plume — a  jury  guaranteed  by 
the  Bill  of  Rights — a  Daniel  had  come  to  judgment ! 
The  Shylocks  of  the  days  of  arbitrary  power 
dropped  their  sharpened  knives  and  ejaculated,  "  Is 
that  the  law  ?  " 

Great,  assuredly,  must  have  been  the  flurry  of  the 
once  omnipotent  Bureau,  when  it  was  ascertained 
that  the  tribunal  before  which  it  must  come  could 
not  be  "organized  to  convict;"  that  there  could  be 
no  soldiery  around  the  Court,  no  shackles  on  the 
prisoners  or  the  witnesses  for  the  defense,  no  prose 
cuting  officers  in  the  jury  room.  Everything  must 
be  done  decently  and  in  order,  with  the  same  calm 
dignity,  unruffled  composure,  the  same  presumption 
of  the  innocence  of  the  accused,  as  though  the  mur 
dered  man  had  been  the  humblest  citizen  of  the 
land.  One  great  advantage,  however,  the  prosecu 
tion  managed  to  secure.  A  Judge  was  selected  to 


HER   VINDICATION.  169 

preside  whom  they  could  rely  on,  as  "  organized  to 
convict."  But  this  was  the  sole  reminiscence  of 
the  unbridled  reign  of  the  military  only  two  years 
before.  A  jury  of  twelve  intelligent  men,  some  of 
them  the  best  citizens  of  the  District,  was  speedily 
obtained  to  the  evident  satisfaction  of  both  the 
people  and  the  prisoner, — and  the  succeeding  Mon 
day,  the  17th,  the  struggle  began. 

As  we  have  given  the  names  of  the  members  of 
the  Court  which  tried  the  mother,  we  may  be  par 
doned  for  giving  the  names  of  the  jurors  who  tried 
the  son.  Although  there  were  no  major-generals 
among  them,  they  are  entitled  to  the  honor  of  being 
within,  and  not  without,  the  aegis  of  the  Consti 
tution. 

The  jurors  were  W.  B.  Todd,  Kobert  Ball,  J. 
Russell  Barr,  Thomas  Berry,  George  A.  Bohrer,  C. 
G.  Schneider,  James  Y.  Davis,  Columbus  Alex 
ander,  William  McLean,  Benjamin  Morsell,  B.  E. 
Gittings,  W.  W.  Birth. 

They  were  thus  spoken  of  by  the  District  Attor 
ney  : 

"  It  is  a  matter  of  mutual  congratulation  that  a 
jury  has  been  selected  agreeable  to  both  parties ;  the 
representatives  of  the  wealth,  the  intelligence,  and 
the  commercial  and  business  character  of  this  com 
munity;  gentlemen  against  whose  character  there 
cannot  be  a  whisper  of  suspicion.  I  would  trust 
you  with  my  life  and  my  honor  ;  and  I  will  trust 
you  with  the  honor  of  my  country.'7 


170  MARY   E.   SUEEATT. 

The  scene  which  the  court-room  presented,  when 
the  Assistant  District  Attorney  arose  to  open  the 
case  for  the  United  States,  afforded  a  speaking  con 
trast  to  the  scene  presented  at  the  opening  of  the 
Military  Commission.  The  Court  was  not  held  in 
a  prison,  and  there  was  an  entire  absence  of  the 
insignia  of  war.  The  doors  of  the  court-room  were 
wide  open  to  the  entrance  of  the  public,  not  locked 
up  in  sullen  suspicion,  and  the  keys  in  the  hands  of 
the  prosecuting  officer.  The  counsel  for  the  prisoner 
confronted  the  jury  and  the  witness-stand  upon  an 
equal  line  with  the  counsel  for  the  United  States ; 
and  there  was  neither  heard,  seen,  nor  surmised,  in 
the  words  or  bearing  of  Edwards  Pierrepont,  the 
leading  counsel  for  the  prosecution,  any  of  the  inso 
lence  and  supercilious  condescension  shown  in  the 
words  and  bearing  of  John  A.  Bingham. 

As  the  prisoner  entered  the  court  and  advanced 
to  the  bar,  no  clank  of  fetters  jarred  upon  the  ear ; 
and,  as  he  sat  at  his  ease  by  the  side  of  his  counsel, 
like  a  man  presumed  to  be  innocent,  the  recollection 
of  that  wan  group  of  culprits,  loaded  down  with 
iron,  as  they  crouched  before  their  imperious  dooms- 
men,  must  have  aroused  a  righteous  wrath  over  the 
barbarous  procedure  of  the  military,  in  comparison 
with  the  benign  rules  of  the  civil,  tribunals.  The 
atmosphere  surrounding  the  court  and  the  trial 
seemed,  also,  to  be  free  from  passion  and  prejudice, 
when  contrasted  with  the  tremendous  excitement 
and  the  thirst  for  blood,  which  permeated  the  sur- 


HER   VINDICATION.  171 

roundings  of  the  Military  Commission.  Although 
the  Bureau  of  Military  Justice  had  busied  itself  in 
the  prosecution,  and  thrust  its  aid  on  the  office  of 
the  District  Attorney ;  although  the  whole  weight 
of  the  federal  administration  was  thrown  in  the 
same  direction  to  vindicate,  if  possible,  the  signature 
of  the  President  to  the  death  warrant  of  the  victims 
of  his  military  court ;  and  notwithstanding  the  pres 
ence  upon  the  bench  of  a  judge  "  organized  to  con 
vict:"  still,  so  repellant  to  partial  passion  were  the 
precincts  of  what  might  fitly  be  styled  a  temple  of 
justice,  a  neutral  spectator  might  feel  reliance  that 
in  that  chamber  innocence  was  safe. 

But  there  was  one  sentiment  hovering  over  the 
trial  and  dwelling  in  all  bosoms,  which  clothed  the 
proceedings  with  a  peculiar  awfulness.  All  felt 
that  the  dead  mother  was  on  trial  with  the  living 
son.  She  had  been  executed  two  years  before  for 
the  same  crime  with  which  he  was  now  charged. 
And,  as  he  stood  in  the  flesh,  with  upraised  hand, 
looking  at  the  jury  which  held  his  life  in  its  hands, 
it  required  no  great  effort  of  fancy  to  body  forth  the 
image  of  his  mother,  standing  beside  him,  murmur 
ing  from  shadowy  lips  the  plea  of  not  guilty,  amid 
the  feeble  repetitions  of  which,  to  her  priest,  she  had 
died  upon  the  scaffold.  To  convict  her  son,  now, 
by  the  unanimous  verdict  of  twelve  men,  and  punish 
him  according  to  law,  would  go  far  to  condone  the 
unconstitutional  trial  and  illegal  execution  of  the 
mother.  Whereas,  on  the  other  hand,  the  acquittal 


172  MARY   E.    SURRATT. 

of  her  son  of  the  same  crime,  by  the  constitutional 
tribunals  of  the  country,  would  forever  brand  the 
acts  of  the  Military  Commission  as  murder  under 
the  forms  of  military  rule.  This  dread  alternative 
met  the  prosecution  at  the  threshold  of  the  trial, 
oppressed  them  with  its  increasing  weight  during 
its  progress,  and  tarried  with  them  even  at  its  close. 
It  appeared  in  the  indictment,  where  the  name  of 
the  mother,  as  one  of  the  conspirators,  was  associated 
with  the  name  of  her  son.  It  appeared  in  the 
examination  of  the  jurors,  when  Judge  Pierrepont 
endeavored  to  extract  from  them  whether  they  had 
formed  or  expressed  an  opinion  as  to  the  guilt  or 
the  innocence  of  the  prisoner,  not  only,  but  also  as 
to  the  guilt  or  the  innocence  of  his  mother.  It 
appeared  during  the  taking  of  testimony,  where 
evidence  bearing  upon  the  guilt  of  Mrs.  Surratt 
alone  was  admitted  at  all  times  as  evidence  against 
her  son.  It  appeared  in  the  argument  of  the 
District  Attorney,  when  he  compares  the  mother 
of  the  prisoner  to  Herodias  and  Lucrezia  Borgia, 
and  "traces  her  connection  with  the  crime"  and 
"  leaves  it  to  the  jury  to  say  whether  she  was  guilty ;" 
where  he  pleads,  like  Antony,  in  behalf  of  the  mem 
bers  of  the  Military  Commission  that  they  were  "all 
honorable  men,"  and  were  not  to  be  blamed  for  obey 
ing  the  orders  of  the  President.  It  appeared  in  the 
arguments  of  the  counsel  for  the  prisoner,  when  Mr. 
Merrick  taunted  the  Government  that  they  were 
pressing  for  a  verdict  to  "  vindicate  the  fearful  action 


HER   VINDICATION.  173 

they  had  committed ; "  when  he  appealed  to  the  jury 
to  "  deal  fairly  by  this  young  man/7  "  even  if  the 
reputation  of  Joseph  Holt  should  not  have  the  vin 
dication  of  innocent  blood  ;  "  when  he  invoked  the 
spirit  of  Mrs.  Surratt  as  a  witness  for  her  son,  and 
rebuked  the  prosecution  for  objecting  to  the  admis 
sion  of  her  dying  declaration  when  they  were  put 
ting  her  again  on  trial  though  dead ;  when  Mr. 
Bradley  charged  that  for  four  weeks  and  more  they 
had  been  trying  Mrs.  Surratt  and  not  her  son,  and 
denounced  Welch  man  and  Lloyd,  avowing  that 
"  the  proof  against  her  was  not  sufficient  to  have 
hung  a  dog  "  and  was  "  rotten  to  the  core."  It  ap 
peared  in  the  speech  of  Judge  Pierrepont,  when  he 
flourished  the  record  of  the  .Military  Commission 
before  the  jury,  and  asserted  that  the  recommenda 
tion  of  Mrs.  Surratt  to  mercy  was  attached  to  it ; 
in  his  avowal  of  his  belief  in  her  guilt;  in  his 
extolling  the  jury  as  a  tribunal  far  more  fit  for  the 
trial  of  such  crimes  than  any  military  court;  and 
in  his  covert  threat  that  the  people  would  punish 
the  City  of  Washington  by  the  removal  of  the  Cap 
itol,  if  the  jury,  by  their  verdict,  did  not  come  up  to 
the  high  standard  erected  for  them.  And,  lastly,  it 
appeared  in  the  charge  of  the  Judge,  which  is  a 
model  of  what  a  one-sided  charge  ought  to  be. 
It  opens  with  the  words  of  the  Old  Testament : 
"Whoso  sheddeth  man's  blood,  by  man  shall  his 
blood  be  shed."  Then  follows  a  sneer  at  the  "  sen 
timental  philosophers,"  who  were  opposed  to  capital 


174  MARY    E.   STTRRATT. 

punishment.  Then  the  Court  inveighs  against  some 
imaginary  advocates,  who  argued  that  to  kill  a  king 
was  a  greater  crime  than  to  kill  a  president;  and 
then  casts  an  imputation  upon  the  integrity  of  the 
decision  in  the  Milligan  Case,  as  "  predicated  upon 
a  misapprehension  of  historic  truth/'  and  that  there 
fore  "we  could  not  perhaps  have  looked  for  a  more 
rightful  deduction/'  "all  loyal  hearts"  being  "  un 
prepared  for  such  an  announcement."  The  Judge, 
then,  holds  that  the  Court  will  take  judicial  cogni 
zance  that  the  crime  charged  was  the  murder  of  the 
President  of  the  United  States,  and  a  more  heinous 
offense  than  the  murder  of  a  simple  individual. 
He,  then,  complacently  sets  aside  the  rule  of  Sir 
Matthew  Hale,  implicitly  followed  since,  as  he 
himself  admits,  by  "  writers  and  judges  seeming 
contented  with  his  reasons  or  indisposed  to  depart 
from  his  principles/'  as  "  not  very  satisfactory  to 
my  (the  Judge's)  mind ; "  and  accordingly  he  de 
clares  that,  in  felonies  of  such  high  grade,  as  in 
cases  of  treason,  there  can  be  no  accessories  before 
the  fact,  but  all  are  principals;  and,  to  support  this 
conclusion,  he  then  cites  and  details  at  length  two 
cases,  apparently  overruling  Sir  Matthew  before 
hand;  (as  he  says)  "  reported  in  that  book  of  highest 
authority  known  among  Christian  nations,  decided 
by  a  judge  from  whose  decision  there  can  be  no 
appeal  and  before  whose  solemn  tribunal  all  judges 
and  jurors  will  in  the  great  day  have  their  verdict 
and  judgments  passed  in  review.7'  One,  the  case 


HER    VINDICATION.  175 

"  of  Naboth  and  Ahab,  contained  in  the  21st  chap 
ter  of  the  First  Book  of  Kings/'  the  other;  "  that 
of  David  and  Uriah,  recorded  in  the  llth  chapter 
of  Second  Samuel ; "  at  the  end  of  the  statement  of 
which  case  the  Judge  remarks,  "this  judgment  of 
the  Lord  was  not  that  David  was  accessory  before 
the  fact  of  this  murder,  but  was  guilty  as  the  prin 
cipal,  because  he  procured  the  murder  to  be  done. 
It  was  a  judgment  to  the  effect  that  he  who  does  an 
act  by  another  does  it  himself,  whether  it  be  a  civil 
or  a  criminal  act."  This  extraordinary  deliverance 
closes  with  an  echo  of  Judge  Pierrepont's  warning 
to  the  jury,  to  uphold  by  their  verdict  the  District 
of  Columbia,  as  a  place  for  "  the  public  servants, 
commissioned  by  the  people  of  the  nation,  to  do 
their  work  safe  and  sacred  from  the  presence  of 
unpunished  assassins  within  its  borders." 

It  would  be  foreign  to  our  purpose,  as  well  as 
tedious  to  the  reader,  to  examine  in  detail  the  testi 
mony  given  on  this  trial.  One  conclusion — and 
that  is  the  important  thing — is  certain.  It  is  true, 
beyond  the  shadow  of  a  doubt,  that  the  prosecution 
made  an  incomparably  stronger  case  against  Surratt 
than  was  made  against  his  mother.  They  had  but 
one  culprit  at  whom  to  direct  their  aim,  and  they 
made  a  far  more  desperate  and  thorough-going 
effort  to  convict,  because  of  the  known  unreliability 
of  a  jury  to  do  what  the  prosecution  might  tell 
them  to  do  without  the  aid  of  proof.  Before  a 
Military  Commission,  tossed  about  by  the  passions 


176  MARY   E.    SURRATT. 

of  its  members  and  steered  by  Judge- Advocates,  the 
accusers  could  afford  to  be  careless  of  gaps  in  their 
scheme  of  proof,  missing  links  in  the  chain  of  cir 
cumstantial  evidence.  Not  so  now  and  here. 
Vehement  affirmation  without  evidence  availed 
nothing.  Curses  against  treason,  traitors,  disloy 
alty,  apostrophes  to  the  imperiled  Union,  tears  over 
the  beloved  Commander-in-Chief,  could  fill  no  void 
in  the  testimony.  Of  course,  there  was  no  such 
outrage  against  not  only  the  elementary  rules  of 
evidence,  but  against  ordinary  decent  fairness,  as  an 
attempt  to  introduce  testimony  of  the  horrors  of 
Libby  Prison  and  Andersonville ;  but  the  door 
looking  in  that  direction  was  opened  as  wide  as 
possible  by  the  eager  Judge.  All  the  material  tes 
timony  given  upon  the  "  Conspiracy  Trial "  against 
Mrs.  Surratt,  not  only,  but  also  against  Payne, 
Herold,  Atzerodt,  Arnold  and  O'Laughlin,  was 
reproduced  here.  The  direct  testimony  on  the  part 
of  the  United  States  occupied  from  June  17th  to 
July  5th,  and  in  that  period  eighty-five  witnesses 
were  examined.  On  the  Conspiracy  Trial,  the 
direct  case  consumed  the  time  from  May  12th  to 
May  25th,  and  about  one  hundred  and  thirty  wit 
nesses  were  examined  against  the  eight  accused  per 
sons,  not  only,  but  also  against  the  eight  accessories, 
headed  by  Jefferson  Davis,  included  in  the  charge, 
the  testimony  ranging  over  the  whole  rebellion  and 
including  Libby,  Andersonville,  Canada,  St.  Albans, 
and  projected  raids  on  New  York,  Washington  and 


HER   VINDICATION.  177 

otfier  cities.  Every  witness,  whose  testimony  on 
the  former  trial  had  the  remotest  bearing  upon  the 
question  of  the  guilt  or  innocence  of  Mrs.  Surratt, 
once  more  showed  his  face  and  retold  his  story. 

Lloyd  was  there,  compelled,  despite  his  supersti 
tious  reluctance  to  speak  against  a  woman  now  she 
was  dead,  to  rehearse  the  tale  which  his  terrors  had 
evolved  out  of  his  drunken  imagination.  This 
time,  however,  his  sottish  memory  or  failure  of 
memory,  his  fright  at  the  time  of  his  arrest,  his 
repeated  denials  of  the  visit  of  Booth  and  Herold, 
his  temptations  and  bribes  to  accuse  his  landlady, 
were,  under  the  keen  cross-examination  of  the  counsel 
for  the  prisoner,  fully  exposed. 

Weichman  "came  also:"  this  time  with  his  story 
carefully  elaborated,  touched  and  retouched  here 
and  there,  and  written  down  beforehand.  He  had 
been  engaged  for  three  or  four  months  in  aiding  the 
prosecution,  had  prepared  a  carefully  detailed  state 
ment  for  the  use  of  the  Assistant  District  Attorney, 
and  now  openly  acknowledged  that  "  his  character 
was  at  stake"  in  this  trial,  and  that  he  u intended 
to  do  all  he  could  to  help  the  prosecution."  He 
had  conned  over  and  over  again  the  report  of  his 
evidence  on  the  Conspiracy  Trial,  had  corrected  it 
to  meet  objections  subsequently  made  and  to  elimi 
nate  discrepancies  and  contradictions,  and  had  thus 
brought  its  several  disjointed  parts  into  some  logical 
sequence ;  he  then  had  added  to  it  the  incidents  and 
conversations  disclosed  for  the  first  time  in  the 
12 


178  MARY    E.    SURRATT. 

affidavit  sent  to  Colonel  Burnett,  which  was 
appended  to  the  published  report  of  the  trial,  to 
which  allusion  has  been  made;  and,  now,  in  the 
final  delivery  of  his  deadly  charge,  coolly  averring 
that  his  memory  was  much  more  distinct  now  than 
at  the  time  of  the  former  trial  two  years  ago,  he, 
with  a  superadded  concentrated  venom,  flavored  his 
narrative  with  a  few  damning  incidents  never  heard 
of  before — one,  the  most  poisonous  of  all,  that  on 
the  evening  of  the  fatal  14th,  while  Booth  was 
about  his  murderous  work,  Mrs.  Surratt  was  pacing 
her  parlor  floor  begging  her  pious  boarder  "to  pray 
for  her  intentions."  This  time,  however,  the  wit 
ness  did  not  escape  unscathed.  When  he  emerged 
from  the  skillful  hands  of  Mr.  Bradley,  his  malicious 
and  sordid  animus  laid  bare, — his  self-contradictions, 
his  studied  revisions,  his  purposeful  additions  to  his 
testimony,  exposed — his  intimacy  with  the  conspira 
tors,  his  terrified  repentance,  his  abject  self-surrender 
and  his  cowardly  eagerness  to  shift  his  peril  upon 
the  head  of  his  protectress, — and  then  his  simulated 
remorse  and  his  later  recantation — all  made  clear — 
he  was  an  object  of  loathing  to  gentlemen ;  a 
stumbling  block  to  the  philanthropist ;  to  the  indif 
ferent,  an  enigma ;  and  to  the  common  man,  a  per 
petual  provocation  to  a  breach  of  the  peace. 

Twelve  witnesses  testified  that  they  saw  John  H. 
Surratt  in  Washington  on  the  14th  of  April,  only 
one  of  whom  had  testified  to  that  effect  on  the  other 
trial.  It  is  curious  now  to  discern  how  the  memory 


HER   VINDICATION.  179 

of  the  witnesses,  it  may  be  unconsciously,  swerved 
under  pressure  toward  the  mark  of  identification. 
The  witnesses  for  the  defense  established  that  the 
prisoner  was  in  Elmira  on  the  afternoon  of  the  13th, 
made  it  more  than  probable  he  was  there  on  the 
14th,  and  almost  certain  he  was  there  on  the  15th. 
The  prosecution,  under  the  force  of  this  proof,  sud 
denly  conceded  his  presence  in  Elmira  on  the  13th, 
and  then,  by  the  accident  of  a  special  train  and  the 
testimony  of  a  ferryman  whom  the  notorious  Mont 
gomery  unearthed  in  the  very  crisis  of  the  emer 
gency,  contrived  with  much  straining  to  land  him 
in  Washington  at  10  o'clock  on  the  morning  of  the 
fatal  day.  Any  calm  observer,  reading  the  account 
of  the  trial  now,  can  see  plainly  that  the  truth  is, 
the  prisoner  had  not  been  in  Washington  since  the 
3rd  of  April. 

The  production  of  Booth's  diary  by  the  prose 
cuting  officers  was  forced  upon  them  by  the  popular 
indignation  over  its  suppression  before  the  Military 
Commission ;  otherwise,  it  is  clear  they  would  not 
have  been  guilty  of  such  a  mistake  in  tactics  as  its 
introduction  as  a  part  of  the  case  for  the  United 
States.  Its  opening  sentences — "  Until  to-day 
nothing  was  ever  thought  of  sacrificing  to  our 
country's  wrongs.  For  six  months  we  had  worked 
to  capture.  But  our  cause  being  almost  lost  some 
thing  decisive  and  great  must  be  done  " — settled  the 
question  of  a  plot  to  kidnap  suddenly  given  up; 


180  MARY   E.    SURRATT. 

and  the  testimony  of  Weichman  indicated  the  hour 
of  abandonment. 

That  every  conceivable  effort  to  obtain  the  con 
viction  of  the  prisoner  was  made,  and  that  a  most 
formidable  array  of  circumstances  was  marshalled 
against  him,  compared  to  which  the  two  discon 
nected  pieces  of  evidence  which  were  so  magnified 
against  his  mother  seem  weak  indeed,  will  be  con 
troverted  by  no  sane  person.  From  June  10th  to 
August  7th — nearly  two  months — the  contest  went 
on.  On  the  last-mentioned  day,  which  was  Wednes 
day,  Judge  Fisher  delivered  his  remarkable  charge, 
and  a  little  before  noon  the  jury  retired.  At  one 
o'clock  in  the  afternoon  of  Saturday,  the  10th,  after 
a  session  of  three  days  and  three  nights,  a  commu 
nication  was  received  from  the  jury  to  the  effect 
that  they  stood  as  at  first,  nearly  equally  divided, 
that  they  could  not  possibly  agree,  and  the  health 
of  several  of  their  numbers  was  becoming  seriously 
impaired.  The  Court,  notwithstanding  the  protest 
of  the  prisoner,  discharged  the  jury,  and  the  pris 
oner  was  remanded  to  jail. 

There  he  did  not  long  remain,  however.  Every 
one  recognized  the  futility  of  another  trial.  The 
strength  of  the  proof  of  the  prisoner's  presence  in 
Elmira  on  the  day  of  the  assassination  wrought  a 
reaction  of  public  opinion  in  his  favor.  The  admin 
istration  was  glad  to  escape  with  less  than  an  une 
quivocal  condemnation.  The  Bureau  of  Military 


HER   VINDICATION.  181 

Justice  was  silent.     John  H.  Surratt  was  quietly 
let  go. 

This  obscure  occurrence,  the  discharge  of  John 
H.  Surratt,  which  caused  not  a  ripple  on  the  surface 
of  human  affairs,  nevertheless  constituted  a  cardinal 
event;  for  it  worked  a  national  estoppel.  When 
that  young  man  stepped  forth  from  the  threshold  of 
the  prison,  to  which  the  United  States  had  brought 
him  in  irons  from  Egypt  across  the  Mediterranean 
and  the  Atlantic,  not  to  follow  his  mother  to  the 
scaffold  and  a  felon's  grave,  but  to  walk  the  earth  a 
living,  free  man, — the  innocence  of  the  mother  was 
finally  and  forever  established  by  the  universal 
acknowledgment  of  all  fair  men.  No  condemna 
tion  of  the  Military  Commission  could  be  so  heavy, 
and  at  the  same  time  so  indubitably  final,  as  the 
simultaneous  conviction  arrived  at  by  all  men,  that 
if  the  son  had  been  tried  by  such  a  tribunal  he 
would  assuredly  have  been  put  to  death,  and  that  if 
the  mother  had  been  reserved  to  calmer  times  and 
the  tribunal  guaranteed  by  the  Constitution  to  every 
man  and  woman,  she  would  now  have  been  living 
with  her  daughter,  instead  of  lying,  strangled  to 
death,  beneath  the  pavement  of  a  prison. 


CHAPTER  III. 
THE  RECOMMENDATION  TO  MERCY. 

THE  worst  was  still  behind. 
It  was  left  to  Time  to  disclose  the  astound 
ing  fact,  that  all  the  military  machinery  of  the  War 
Department,  its  Bureaus,  its  Court,  its  Judge- 
Advocates,  its  unconstitutional,  anti-constitutional 
and  extra-constitutional  processes,  would  not  have 
compassed  the  death  of  this  helpless  woman,  had 
not  the  prosecutors,  in  the  last  extremity,  called  in 
the  help  of  Fraud. 

It  has  been  narrated  in  the  chronological  order  of 
events,  how  five  members  of  the  Military  Commis 
sion  were,  in  all  probability,  beguiled  into  the  abdi 
cation  of  their  own  power  of  commutation  and  did, 
as  matter  of  fact,  sign  a  paper  "  praying"  the 
President,  "  if  he  could  find  it  consistent  with  his 
sense  of  duty  to  the  country,"  to  commute  the 
death  sentence  of  Mrs.  Surratt ;  how  that  the  paper 
may  have  been  carried  to  the  President  by  Judge 
Holt  and  have  been  present  at  the  confidential  inter 
view  when  the  death  warrant  was  composed ;  and 
how  that  Judge  Holt,  in  drafting  the  death  warrant, 
went  out  of  his  way  to  so  write  it  out,  as  in  fact,  if 
182 


HER   VINDICATION.  183 

not  by  design,  to  withdraw  from  the  eye  of  the 
President,  as  he  signed  it,  this  paper  praying  him  to 
withhold  his  signature. 

But  it  should.be  borne  in  mind  that  all  this  was 
shrouded  in  the  deepest  secrecy.  That  there  had 
been  any  hesitation  among  the  members  of  the 
Commission  in  fixing  the  sentence  of  Mrs.  Surratt — 
any  more  than  in  the  cases  of  Herold,  Atzerodt  and 
Payne — much  more  that  it  had  been  found  necessary 
to  resort  to  a  petition  to  the  President,  was  entirely 
unknown  to  the  public  at  large.  As  to  what  had 
taken  place  in  the  sessions  of  the  Court  when  the 
sentences  were  made  up,  every  member  thereof  and 
the  three  Judge- Advocates  were  sworn  to  secrecy ; 
and,  outside  these  officers,  .the  knowledge  of  the 
petition  was  confined  to  the  Secretary  of  War  (pos 
sibly  the  Attorney-General)  and  one  or  two  subordi 
nates  in  the  War  Department.  The  record  of  the 
findings  and  sentences,  to  which  the  petition  was 
attached,  was  kept  from  the  official  reporters,  and 
not  a  soul  outside  a  close  coterie  in  the  War  Depart 
ment  was  allowed  to  set  eyes  on  it. 

In  the  recital  of  the  death  sentences  in  the  order 
of  the  Adjutant-General  directing  their  execution, 
the  sentence  of  the  woman  differed  in  no  respect 
from  the  three  sentences  of  the  men  which  preceded 
it.  So  far  as  the  public  eye  could  discover,  there 
was  not  a  gleam  of  mercy  for  the  woman  in  the 
bosom  of  the  Commission. 


184  MARY   E.    SURRATT. 

It  is  true,  that  even  before  the  execution  there 
were  rumors  that  the  Court  had  united  in  a  recom 
mendation  to  mercy,  and  it  was  stated  in  the  news 
papers  of  the  6th  and  7th  of  July  that  five  members 
of  the  Commission  had  signed  such  a  recommenda 
tion  and  the  whole  Court  concurred  in  it.  It  is  also 
certain,  that  almost  immediately  after  the  execution 
the  story  sprang  up  that  the  President  had  never 
been  allowed  to  see  the  recommendation  which  the 
Court  had  addressed  to  him. 

But  all  these  statements  remained  without  cor- 
roboration  from  any  authentic  source,  and  could  not 
stand  before  the  indubitable  facts  of  the  sentence, 
its  approval  by  the  President,  and  its  summary  exe 
cution.  The  single  indication  that  in  all  these 
reports  the  paper  is  miscalled  "  a  recommendation 
to  mercy "  shows  of  itself  that  the  real  nature  of 
the  secret  was  well  kept. 

In  November,  1865,  there  appeared  a  volume 
compiled  by  Benn  Pitman  styled  "  The  Eecorder  to 
the  Commission,"  claiming  to  be  "  An  authentic 
record  of  the 'trial  of  the  assassins  of  the  late 
President,"  to  which  was  prefixed  a  certificate  "  to 
its  faithfulness  and  accuracy  "  by  Colonel  Burnett, 
who  had  been  assigned  by  Judge  Holt  to  superin 
tend  the  compilation  and  "  made  responsible  for  its 
strict  accuracy."  This  work,  so  authenticated,  was 
on  its  face  intended  by  its  compiler  to  be  a  complete 
history  "  for  future  use  and  reference  "  of  the  pro 
ceedings  of  the  Commission,  from  the  order  of  the 


HER   VINDICATION.  185 

President  convening  it  to  the  approval  of  the 
President  of  its  findings  and  sentences.  It  had  for 
frontispiece  portraits  of  the  conspirators  and  a  map 
of  portions  of  Maryland  and  Virginia  showing  the 
route  of  Booth,  and  for  afterpiece  a  diagram  of  the 
stage  of  Ford's  theatre  and  a  diagram  of  the  streets 
in  its  vicinity.  Beside  matter  strictly  of  record, 
such  as  the  testimony  and  the  findings  and  sen 
tences,  it  included  the  arguments  of  all  the  counsel, 
the  approval  of  the  President,  the  order  changing 
the  place  of  imprisonment  from  Albany  to  the  Dry 
Tortugas,  the  proceedings  under  the  writ  of  habeas 
corpus  in  the  case  of  Mrs.  Surratt;  and  (in  the 
appendix)  the  opinion  of  Attorney-General  Speed ; 
army  instructions  in  ten  sections ;  a  proclamation  of 
President  Lincoln  ;  a  poisonous  affidavit  of  Weich- 
man,  inclosed  in  a  letter  to  Colonel  Burnett ;  and 
an  affidavit  of  Captain  Dutton,  who  took  Dr.  Mudd 
to  the  Dry  Tortugas,  giving  the  confessions  the 
Captain  swears  the  Doctor  made  on  the  way,  sent  to 
General  Holt  in  obedience  to  his  request  for  such 
information.  Nevertheless,  amid  all  this  wealth  of 
illustration,  there  is  not  the  faintest  allusion  to  any 
such  thing  as  a  recommendation  to  mercy,  in  the 
volume.  On  the  one  hand,  Pittman  may  not  have 
seen  the  pap^r.  His  findings  and  sentences  are 
obviously  taken  from  the  order  of  the  Adjutant- 
General,  and  not  from  the  original  record,  as  he 
puts  them  in  the  same  order,  which  is  not  the  order 
of  the  record.  But,  if  he  never  saw  the  paper,  it 


186  MARY   E.   SURRATT. 

must  have  been  purposely  kept  from  his  knowledge, 
and  thus  from  the  knowledge  of  the  public,  by 
some  person  interested  in  its  suppression.  And 
Colonel  Burnett,  who  had  himself  attached  the 
paper  "at  the  end"  of  the  record,  instead  of  certi 
fying  to  the  "  faithfulness  and  accuracy  "  of  a  com 
pilation  omitting  it,  ought  rather  to  have  insisted 
that  so  important  and  interesting  a  document,  about 
the  existence  of  which  so  much  talk  had  arisen,  be 
at  last  given  to  the  world. 

On  the  other  hand,  if  Pitman  knew  of  the  paper, 
he  certainly  would  not  have  voluntarily  left  it  out 
of  his  book  for  the  reason,  he  himself  felt  con 
strained  afterwards  to  assign,  that  "it  formed  no 
part  of  the  proceedings,  was  not  mentioned  in  open 
session ; "  since  he  had  given  room  to  so  much  mat 
ter,  not  of  record,  solely  for  the  purpose  of  adding 
interest  and  completeness  to  his  work,  and  this  crit 
ical  document  could  add  so  much  to  the  one  and  its 
absence  detract  so  much  from  the  other. 

Moreover,  in  December,  the  report  of  the  Judge- 
Advocate-General  to  the  Secretary  of  War  appeared, 
in  which  the  trial  was  reviewed,  and  to  which  the 
report  to  the  President,  dated  July  5th,  1865,  was 
appended.  But  in  both  the  existence  of  the  petition 
was  ignored. 

Whatever  may  have  been  the  true  inwardness  of 
these  significant  omissions,  their  inevitable  effect  was 
to  confince  the  mass  of  the  people  of  the  non- 
existence  of  a  recommendation  to  mercy ;  and  the 


HER   VINDICATION.  187 

petition  of  the  five  officers  might  have  reposed  in 
silence  in  the  secret  archives  of  the  War  Depart 
ment,  had  it  not  been  for  the  alienation  of  the  Pres 
ident  from  the  party  which  had  elected  him,  his 
gradual  gravitation  towards  his  own  section,  and 
finally  his  revolt  from  the  sway  of  Stanton.  During 
this  period,  the  rumors  that  the  Court  had  recom 
mended  Mrs.  Surratt  to  the  clemency  of  the  Exec 
utive  and  that  the  paper  had  never  reached  the 
Executive,  coupled  with  stories  that  from  the  close 
of  the  trial  to  the  hour  of  the  execution  the  Presi 
dent  had  been  kept  under  confinement  and  in  a  state 
of  semi-stupefaction  by  a  band  of  reckless  partisans 
who  were  bound  there  should  be  no  clemency,  grew 
louder  and  louder.  But  they  were  never  traceable 
to  any  reliable  source.  In  fact,  the  coolness  which 
had  been  for  a  long  time  growing  between  Andrew 
Johnson  and  Edwin  M.  Stanton  did  not  break  out 
into  an  open  rupture  until  as  late  as  the  month  of 
March,  1867.  The  other  members  of  the  Cabinet, 
which  Johnson  had  inherited  from  Lincoln,  who 
disagreed  with  Johnson  on  the  question  of  Recon 
struction,  Harlan,  Dennison  and  Speed,  resigned,  on 
account  of  that  disagreement,  in  the  summer  of  1866 ; 
but  Stanton  stayed  on.  When  the  Tenure  of  Office 
bill  was  passed  by  the  Congress  in  February,  1867, 
the  Secretary  of  War  was  still  so  much  in  ac.cord 
with  the  President  as  to  unite  with  the  other  mem 
bers  of  the  reconstructed  Cabinet  in  an  emphatic 
condemnation  of  the  bill  as  unconstitutional,  and 


188  MARY    E.    SURRATT. 

to  be  asked  by  the  President  to  draft  his  veto 
message. 

But,  on  the  passage  of  that  Act  over  the  veto, 
Stanton,  thinking  his  tenure  of  office  secure,  at  last 
threw  off  the  double-faced  mask  he  seems  to  have 
worn  in  every  Cabinet  to  which  he  ever  had  the 
honor  to  belong.  From  that  time  he  stood  alone  in 
the  Cabinet,  irreconcilable  in  his  hostility  to  every 
move  of  his  Chief,  in  open  league  with  his  Chiefs 
active  enemies,  and  determined  to  remain  where  he 
was  not  wanted  and  could  only  act  as  a  hindrance 
and  a  spy.  In  this  perilous  state  of  affairs,  a  secret 
like  that  of  the  petition  of  the  five  officers  burned 
towards  disclosure.  Yet,  so  far  as  is  at  present 
ascertainable,  no  authoritative  affirmation  of  the 
existence  of  such  a  paper,  on  the  one  hand,  and  no 
authoritative  denial  that  it  had  been  presented  to 
the  President,  on  the  other,  had  yet  been  made. 

Upon  such  an  arrangement  of  combustible  mate 
rial,  the  trial  of  John  H.  Surratt  acted  like  a  spark 
of  fire. 

On  the  second  day  (June  llth,  1867),  during  the 
impanelling  of  the  jury,  Mr.  Pierrepont,  the  leading 
counsel  for  the  United  States,  alluding  to  the  rumors 
then  flying  about,  took  occasion  to  predict  that  the 
Government  on  that  trial  would  set  all  these  false 
stories  at  rest. 

Among  other  things  he  said  : 

"  It  has  likewise  been  circulated  through  all  the  public 
journals  that  after  the  former  convictions,  when  an  effort  was 


HER   VINDICATION.  189 

made  to  go  to  the  President  for  pardon,  men  active  here  at  the 
seat  of  government  prevented  any  attempt  being  made  or  the 
President  being  even  reached  for  the  purpose  of  seeing  whether 
he  would  not  exercise  clemency ;  whereas  the  truth,  and  the 
truth  of  the  record  which  will'  be  presented  in  this  court,  is 
that  all  this  matter  was  brought  before  the  President  and  pre 
sented  to  a  full  Cabinet  meeting,  where  it  was  thoroughly  dis 
cussed  ;  and  after  such  discussion,  condemnation  and  execution 
received  not  only  the  sanction  of  the  President  but  that  of 
every  member  of  his  Cabinet." 

The  testimony  in  the  case  closed,  however,  and 
the  summing  up  began,  and  there  had  been  no 
attempt  at  a  fulfillment  of  this  prediction. 

On  Thursday  afternoon,  August  1st,  Mr.  Mer- 
rick,  the  junior  counsel  for  the  prisoner,  then  near- 
ing  the  close  of  his  address,  twitted  the  prosecution 
with  this  breach  of  its  promise  in  these  words : 

"  Where  is  your  record  ?  Why  didn't  you  bring  it  in  ?  Did 
you  find  at  the  end  of  the  record  a  recommendation  to  mercy 
in  the  case  of  Mrs.  Surratt  that  the  President  never  saw  ? 
You  had  the  record  here  in  Court. 

"  Mr.  Bradley  :     And  offered  it  once  and  withdrew  it  ? 

"  Mr.  Merrick  :     Yes,  sir ;  offered  it  and  then  withdrew  it. 
.  "  Did  you  find  anything  at  the  close  of  it  that  you  did  not 
like  ?     Why  didn't  you  put  that  record  in  evidence,  and  let  us 
have  it  here?" 

Stung  by  the  .necessity  of  making  some  answer 
to  this  defiant  challenge,  Mr.  Pierrepont  on  the 
moment  sent  for  the  record.  And  in  response  to 
the  summons,  Judge- Advocate  Holt,  who  naturally 
must  have  followed  the  prosecution  and  trial  with 
the  most  absorbing  anxiety,  on  that  very  afternoon 


190  MARY    E.    SURRATT. 

brought  the  record  "with  his  own  hand,"  ''with 
his  own  voice"  told  its  history,  in  the  presence  of 
"three  gentlemen,"  to  Mr.  Pierrepont,  and  then 
left  the  papers  with  him. 

On  the  succeeding  day,  August  2nd,  Mr.  Brad 
ley,  the  senior  counsel  of  the  prisoner,  renewed  the 
attack  : 

"  It  was  boastfully  said  in  the  opening  of  this  case  that  they 
would  vindicate  the  conduct  of  the  law  officers  of  the  Govern 
ment  engaged  in  the  conspiracy  trials.  They  would  produce 
Booth's  diary ;  they  would  show  that  the  judgment  of  the  court 
was  submitted  to  the  Cabinet  and  fully  approved ;  that  no 
recommendation  for  mercy  for  Mrs.  Surratt — that  no  petition 
for  pardon  to  the  Government — had  been  withheld  from  the 
President.  Is  it  so  ?  " 

The  next  morning,  Saturday,  August  3d,  Mr. 
Pierrepont  began  his  address  to  the  jury.  Having 
kept  possession  of  the  record  since  Thursday  after 
noon,  and  having  been  made  acquainted  with  its 
history  by  Judge- Advocate  Holt  in  such  an  impres 
sive  manner,  he,  thus,  in  his  exordium,  at  last, 
redeemed  the  promise  of  the  prosecution  : 

"  The  counsel  certainly  knew  when  they  were  talking  about 
that  tribunal  "  (i.  e.  the  Military  Commission),  "and  when  they 
were  thus  denouncing  it,  that  President  Johnson  *  *  *  ordered 
it  with  his  own  hand,  that  President  Johnson  *  *  *  signed  the 
warrant  that  directed  the  execution,  that  President  Johnson 
*  *  *  when  that  record  was  presented  to  him,  laid  it  before  his 
Cabinet,  and  that  every  single  member  voted  to  confirm  the 
sentence,  and  that  the  President  with  his  own  hand  wrote  his 
confirmation  of  it,  and  with  his  own  hand  signed  the  warrant. 
I  hold  in  my  hand  the  original  record,  and  no  other  man  as  it 


HER   VINDICATION.  191 

appears  from  that  paper  ordered  it.  No  other  one  touched  this 
paper,  and  when  it  was  suggested  by  some  of  the  members  of 
the  Commission  that  in  consequence  of  the  age  and  the  sex  of 
Mrs.  Surratt,  it  might  possibly  be  well  to  change  her  sentence  to 
imprisonment  for  life,  he  signed  the  warrant  for  her  death  with 
the  paper  right  before  his  eyes — and  there  it  is  (handing  the 
paper  to  Mr.  Merrick).  My  friend  can  read  it  for  himself." 

This  is  the  first  appearance  in  public  of  the  pre 
cious  record.  On  Wednesday,  July  5th,  1865, 
Andrew  Johnson  put  his  name  to  the  death-warrant 
written  on  its  back  by  Judge  Holt.  And,  now,  two 
years  after,  emerging  from  its  hiding-place,  it  is 
flung  upon  a  table  in  a  court-room  by  the  counsel 
for  the  United  States. 

Even  now  it  seems  to  be  destined  to  a  most  unsat 
isfactory  publication.  For  the  counsel  of  the  pris 
oner  decline  to  look  at  it,  because  (as  Mr.  Merrick 
subsequently  explained),  "  he  mistrusted  whatever 
came  from  the  Judge- Ad vocate-GeneraPs  office ;  " 
because  it  "had  been  carefully  withheld  until  all 
opportunity  had  passed  for  taking  evidence  in  rela 
tion  to  it ; "  and  because  the  official  report  of  the 
trial  contained  no  recommendation  of  mercy.  The 
mysterious  roll  of  paper,  consequently,  lies  there 
unopened,  until  Judge  Holt  comes  to  reclaim  it  that 
same  afternoon  ;  and  that  officer  is  careful,  when 
receiving  it  back,  to  repeat  over  again,  before  other 
witnesses,  the  same  history  of  the  document,  he  had 
told  before  to  the  counsel  for  the  prosecution,  and 
which  that  counsel  had  just  retold  to  the  jury. 


192  MARY    E.    SURRATT. 

But  that  had  been  said  and  done  which  must 
blow  away  the  atmosphere  of  unwholesome  secrecy 
which  had  so  long  enveloped  this  addendum  to  the 
record.  The  explicit  declaration  of  the  counsel  for 
the  United  States,  made  in  a  crowded  court-room  on 
so  celebrated  a  trial,  with  the  "  identical  paper  "  in 
his  hand,  that  the  President  had  laid  the  record 
before  his  Cabinet  and  "  every  single  member  voted 
to  confirm  the  sentence,"  and  that  the  President 
had  signed  the  death-warrant  with  the  "  suggestion  " 
of  commutation  "  right  before  his  eyes/'  was  imme 
diately  published  far  and  wide,  and  must  have  been 
read  on  Sunday,  the  4th,  or  at  latest  on  Monday, 
the  5th,  by  the  President  himself.  And  the  Presi 
dent  was  certainly  astounded.  By  a  most  singular 
providence,  Judge  Holt  himself,  in  a  letter  written 
to  himself,  at  his  request,  by  his  chief  clerk,  and 
published  by  him  in  1873  for  another  purpose,  has 
furnished  independent  proof  that  the  President  was 
now  for  the  first  time  startled  into  sending  for  the 
record. 

Here  is  what  Chief  Clerk  Wright  says : 

"  On  the  5th  day  of  August,  1867,  Mr.  Stanton,  the  Secre 
tary  of  War,  sent  for  me,  and  in  the  presence  of  General  Grant 
asked  me  who  was  in  charge  of  the  Bureau  in  your  absence.  I 
informed  him  Colonel  Winthrop.  He  requested  I  should  send 
him  over  to  him,  which  I  did.  The  Colonel  returned  and 
asked  me  for  the  findings  and  sentence  of  the  conspiracy  trial, 
telling  me  he  had  to  take  it  to  the  President.  On  taking  the 
portion  of  the  record  referred  to  from  the  bundle,  I  found, 
from  the  frequent  handling  of  it,  several  of  the  last  leaves  had 


HER    VINDICATION.  193 

torn  loose  from  the  ribbon  fastening,  and  to  secure  them  I  put 
the  eyelet  in  one  corner  of  it." 

The  Judge- Advocate-General,  though  in  court  on 
Saturday  getting  back  the  record  and  retelling  its 
history,  was  absent,  it  would  appear,  from  his  office 
on  Monday,  or  was  considered  absent  by  Stanton, 
who  it  also  appears  was  still  Secretary  of  War  and 
in  communication  with  Johnson.  It  was  thought 
best  to  employ  a  deputy  to  carry  the  papers  to  the 
President.  Holt,  probably,  had  no  stomach  for 
another  "  confidential  interview/'  with  the  identical 
record  in  his  hand. 

Let  Andrew  Johnson  himself  tell  what  followed. 
The  statement  is  from  his  published  reply  to  Holt 
in  1873,  and  was  made  with  no  reference  to,  and 
apparently  with  no  recollection  of,  the  foregoing 
incidents  of  the  John  H.  Surratt  trial: 

"  Having  heard  that  the  petition  had  been  attached  to  the 
record,  I  sent  for  the  papers  on  the  5th  day  of  August,  1867, 
with  a  view  of  examining,  for  the  first  time,  the  recommenda 
tion  in  the  case  of  Mrs.  Surratt. 

"  A  careful  scrutiny  convinced  me  that  it  was  not  with  the 
record  when  submitted  for  my  approval,  and  that  I  had  neither 
before  seen  nor  read  it." 

It  may  have  been  only  a  coincidence,  but  on  this 
very  day,  Monday,  August  5th,  1867,  and  neces 
sarily  after  the  sending  for  the  record,  because  that 
was  done  through  the  Secretary  of  War,  the  follow 
ing  interesting  missive  was  dispatched  by  the  Presi 
dent  to  that  member  of  his  Cabinet : 
13 


194  MARY    E.   SURE  ATT. 

"  Sir :  Public  considerations  of  a  high  character  constrain  me 
to  say  that  your  resignation  as  Secretary  of  War  will  be 
accepted." 

Stanton  immediately  replied : 

"Public  considerations  of  a  high  character  constrain  me  not 
to  resign  before  the  next  meeting  of  Congress." 

And,  on  the  12th,  he  was  suspended  from  office. 

But  Andrew  Johnson  was  not  the  only  interested 
personage  who  read  the  explicit  declaration  of  Mr. 
Pierrepont.  The  statement  that  every  member  of 
the  Cabinet  voted  to  confirm  the  sentence  of  Mrs. 
Surratt,  with  the  record,  including,  of  course,  the 
recommendation,  before  them,  must  have  been  read 
also  by  William  H.  Seward,  Edwin  M.  Stanton, 
Hugh  McCulloch,  and  Gideon  Welles,  the  members 
of  that  "  full  Cabinet "  who  still  remained  in  office. 
They  surely  knew  the  truth  of  the  statement,  if  it 
was  true,  or  its  falsity,  if  it  was  false.  If  it  was  true, 
is  it  not  perfectly  inconceivable  that  the  President, 
conscious  that  these  four  of  his  confidential  advisers 
had  seen  the  record  and  voted  to  deny  the  petition, 
would  have  dared  to  enact  the  comedy  of  sending 
for  the  record,  and  then  brazenly  assert  that  the 
petition  had  not  been  attached  to  it  when  before 
him,  and  that  he  had  neither  seen  nor  read  it? 

And  if  he  had  been  guilty  of  so  foolhardy  a  course 
of  action,  now  was  the  time  for  the  Judge- Advocate 
to  fortify  the  declaration  which  he  had  inspired  Mr. 
Pierrepont  to  make,  by  appealing  to  these  members 


HER   VINDICATION.  195 

of  the  Cabinet  to  confront  their  shameless  chief  with 
their  united  testimony,  and  forever  silence  the  "  atro 
cious  accusation." 

From  his  course  of  proceeding  at  a  later  day,  it  is 
not  probable  that  he  made  any  such  attempt.  At 
all  events,  he  got  no  help  from  Seward,  from  Mc- 
Culloch  or  from  Welles.  Nay,  he  got  no  help 
to  sustain  his  history  of  the  record,  even  from 
Stanton.  If  help  came  from  that  quarter  at  all,  it 
was  to  shield  him  from  the  awakened  wrath  of  the 
hood-winked  Executive,  by  drawing  the  fire  upon  the 
head  of  his  department. 

But  what  the  Judge- Advocate-General  did  do,  in 
view  of  the  crisis,  is  sufficiently  apparent.  He  took 
immediate  measures  to  retract  all  that  portion  of  Mr. 
Pierrepont's  declaration  of  Saturday,  which  expressed 
or  implied  any  knowledge  on  the  part  of  the  Cabinet 
of  the  disputed  paper. 

The  counsel  for  the  United  States  had  continued 
his  speech  to  the  jury  all  day  Monday,  apparently 
unconscious  of  the  tempestuous  effect  of  his  statement 
of  Saturday,  and  of  the  predicament  in  which  it  had 
involved  his  informant.  In  the  evening,  he  must 
have  had  a  " confidential  interview"  with  Judge 
Holt.  For,  on  rising  to  resume  his  speech  on  Tues 
day  morning,  the  6th  of  August,  from  no  apparent 
logical  cause  arising  from  the  course  of  his  argument, 
he  saw  fit  to  recur  to  the  now  absent  record,  and  to 
interpolate  the  following  perfectly  insulated  and 
seemingly  superfluous  piece  of  information  : 


196  MARY   E.    SURRATT. 

"  You  will  recollect,  gentlemen,  when  a  call  was  made  sev 
eral  days  ago  by  Mr.  Merrick  *  *  asking  that  we  should  pro 
duce  the  record  of  the  Conspiracy  Trial,  that  I  brought  the 
original  record  here  and  handed  it  to  counsel.     I  then  stated 
that  as  a  part  of  that  record  was  a  suggestion  made  by  a  part 
of  the  Court  that  tried  the  conspirators,  that,  if  the  President 
thought  it  consistent  with  his  public  duty,  they  would  suggest, 
in  consideration  of  the  sex  and  age  of  one  of  those  condemned, 
that  a  change  might  be  made  in  her  sentence  to  imprisonment 
for  life.     I  stated  that  I  had  been  informed  that  when  that 
record  was  before  the  President,  and  when  he  signed  the  war 
rant  of  execution,  that  recommendation  was  then  before  him. 
I  want  no  misunderstanding  about  that,  and  I  do  not  intend 
there  shall  be  any.     That  is  a  part  of  the  original  record 
which  I  here  produced  in  Court.     It  is  in  the  hand-writing  of 
one  of  the  members  of  that  Court,  to  wit,  General  Ekin.     The 
original  of   that  is  now  in  his  possession  and  in  the  hand 
writing  of  Hon.  John  A.  Bingham.     When  the  counsel  called 
for  that  record,  I  sent  the  afternoon  of  that  day  to  the  Judge- 
Advocate-General,  in  whose  possession  these  records  are.     He 
brought  it  to  me  with  his  own  hand,  and  told  me  with  his  own 
voice,  in  the  presence  of   three  other  gentlemen,  that  that 
identical  paper,  then  a  part  of  the  record,  was   before  the 
President  when  he  signed  the  warrant  of  execution,  and  that 
he  had  a  conversation  with  the  President  at  that  time  on  the 
subject.     That  is  my  authority.     Subsequently  to  this,  having 
presented  it  here,  the  Judge-Advocate-General  called  to  receive 
it  back,  and  reiterated  in  the  presence  of  other  gentlemen  the 
same  thing.     That  is  my  knowledge  and  that  is  my  authority." 

Here  we  have,  then,  the  final  statement  of  his 
side  of  the  case,  made  by  Judge  Holt,  through  the 
mouth  of  counsel,  revised  and  corrected  under  the 
stress  of  the  occurrences  at  the  White  House  and 
the  negatory  attitude  of  the  members  of  the  Cabinet 
present  on  the  spot.  Stripped  of  the  allegation  that 


HER  VINDICATION.  197 

the  record  was  laid  before  the  Cabinet  and  voted 
upon  by  every  member  of  the  Cabinet,  its  affirma 
tions,  carefully  confined  to  "  the  confidential  inter 
view  "  between  the  President  and  the  Judge- Advo 
cate,  go  no  farther  than  that  "  the  identical  paper  " 
was  "before  the  President,"  when  he  signed  the 
death  warrant,  and  they  had  a  conversation  "  on  the 
subject." 

"He  wants  no  misunderstanding"  and  does  "not 
intend  there  shall  be  any."  The  counsel  in  great 
detail  relates  how  he  came  by  his  facts.  "  That  is 
my  knowledge  and  that  is  my  authority."  Of 
course  it  is  open  to  everybody  to  believe,  if  he 
choose,  that  the  talk  of  the  Cabinet  meeting  and  of 
the  unanimous  vote  of  its  members  against  the 
petition,  was  a  mere  rhetorical  exaggeration  of  a 
simple  narrative  of  Holt  relating  the  incidents  of 
an  interview  between  the  President  and  himself, 
struck  off  by  Judge  Pierrepont  in  the  full  fervor  of 
his  eloquence ;  but,  nevertheless,  it  remains  true 
that  the  Judge-Advocate,  until  the  catastrophe 
befell,  was  satisfied  it  should  stand,  rhetoric  and  all ; 
because  he  "  reiterated  the  same  thing'7  on  Saturday, 
after  the  counsel  had  concluded  his  statement,  and 
on  Monday  the  counsel  continued  his  address  all 
day  without  being  advised  of  the  necessity  for  any 
retraction. 

Be  this  as  it  may,  there  is  now,  at  the  last,  no 
appeal  by  the  Judge- Advocate  to  the  members  of 
the  Cabinet,  all  of  whom  were  living,  as  witnesses 


198  MARY   E.    SURRATT. 

to  tho  President's  knowledge  of  the  petition  of 
mercy.  He  abandons  hope  of  corroboration  from 
members  of  the  Cabinet,  and  he  takes  his  stand 
upon  the  single  categorical  affirmation,  that  the 
"  identical  paper  "  formed  part  of  the  record  when 
the  record  was  before  the  President  in  1865. 

And,  singular  as  it  may  appear,  this  is  the  very 
thing  that  the  President  does  not  categorically  deny; 
he  only  infers  the  contrary  from  the  appearance  of 
the  record  in  1867. 

The  single 'categorical  negation  of  the  President 
is  that  he  neither  saw  nor  read  the  recommendation. 
And,  singular  as  it  may  appear,  this  the  Judge- 
Advocate  does  not  categorically  affirm  ;  he  leaves  it 
to  be  inferred  from  his  averment  of  the  presence  of 
the  paper  and  a  conversation  on  the  subject. 

In  short,  the  statements  of  the  two  disputants  are 
not  contradictory.  Both  may  be  true.  And,  when 
we  recollect  the  feeble  state  of  health  of  the  Presi 
dent  at  the  time  of  the  "confidential  interview" 
and  his  mood  of  mind  towards  the  distasteful  task 
forced  upon  him  in  a  season  of  nervous  debility ; 
when  we  recollect  the  mode  and  manner  the  Judge- 
Advocate  adopted  of  writing  out  the  death  warrant ; 
it  will  seem  extremely  probable  that  both  statements 
are  true.  The  President  made  no  "  careful  scrutiny  " 
of  the  record  in  1865,  or  he  would  not  have  needed 
to  do  so  in  1867.  The  Judge-Advocate,  inspired 
by  his  master,  would  not  be  too  officious  in  pointing 
out  to  the  listless  and  uninquiring  Executive  the 


HER   VINDICATION.  199 

superfluous  little  paper.  He  might  do  his  whole 
duty,  by  conversing  on  the  subject  of  the  commuta 
tion  of  the  sentence  of  the  one  woman  condemned, 
and,  then,  by  so  placing  the  roll  of  papers  for  the 
President's  signature  to  the  death  warrant  as  to 
bring  the  modest  "  suggestion  "  of  the  five  officers 
" right  before  his  eyes"  though  upside  down.  If 
the  sick  President  did  not  carefully  scrutinize  the 
papers,  was  that  the  Judge-Advocate's  fault?  Nay, 
in  writing  out  the  death  warrant  in  the  inspired  way 
he  did,  this  zealous  patriot  may  have  felt  even  a 
pious  glow,  in  thus  lending  himself  as  an  instrument 
to  ward  off  a  frustration  of  Divine  justice.  Alas  ! 
one  may  easily  lose  one's  self  in  endeavoring  to 
trace  out  the  abnormal  vagaries  of  the  "  truly 
loyal  "  mind,  at  that  period  of  hysterical  patriotism. 

After  these  incidents  on  the  Surratt  trial,  and  at 
the  White  House,  there  could  be  no  more  mystery 
about  the  recommendation  to  mercv.  It  was  his 
torically  certain  that  such  a  document,  or  rather  a 
"  suggestion,"  did  in  fact  emanate  from  the  Commis 
sion,  and  was  at  some  time  affixed  to  the  record. 
Left  out  of  Pitman's  official  compilation,  nevertheless 
it  was  there.  The  only  question  about  it  which  could 
any  longer  agitate  the  people  was,  had  it  been  sup 
pressed?  And  this,  unfortunately,  was  now  narrowed 
down  to  a  mere  question  of  veracity  between  the 
President  and  his  subordinate  officer,  as  to  what 
occurred  at  the  Confidential  Interview ;  and  which, 


200  MARY    E.    SURE  ATT. 

moreover,  threatened  to  resolve  itself  into  a  maze  of 
special  pleading  about  the  lack  of  attention,  on  the 
part  of  the  Executive,  and  the  duty  of  thorough 
explanation,  on  the  part  of  the  Judge- Advocate,  in 
the  delicate  task  of  approving  the  judgment  of  a 
Military  Commission. 

Whether  this  unsatisfactory  and  ticklish  state  of 
the  issue  was  the  cause  or  not,  nothing  was  done  in 
consequence  of  these  revelations  of  the  Surratt  trial. 
The  President,  indeed,  plunged  as  he  was  in  the 
struggle  to  get  rid  of  Stanton,  which  finally  led  to 
his  impeachment,  and  remembering  his  own  remiss- 
ness  in  not  scrutinizing  the  papers  before  he  signed 
the  death-warrant,  could  have  had  but  little  inclina 
tion  to  provoke  another  conflict,  on  such  precarious 
grounds,  by  attempting  the  removal  of  the  incrimi 
nated  subordinate  of  his  rebellious  Secretary.  He 
kept  possession  of  the  record,  however,  long  enough 
to  subject  it  to  a  thorough  inspection  by  himself  and 
his  advisers,  for  (as  appears  from  the  letter  of  the 
chief  clerk  already  quoted)  it  was  not  returned  to 
the  Judge- Ad vocate-General's  office  until  December, 
1867. 

The  Judge-Advocate,  on  his  part,  remained  like 
wise  passive  and  displayed  no  eagerness  for  a  vindi 
cation  by  a  court  of  inquiry. 

He  pleads  in  1873,  as  excuse  for  his  non-action, 
that  "  it  would  have  been  the  very  madness  of  folly  " 
for  him  "  to  expose  his  reputation  to  the  perils  of  a 
judicial  proceeding  in  which  his  enemy  and  slanderer 


HER    VINDICATION.  201 

would  play  the  quadruple  role  of  organizer  of  the 
court,  accuser,  witness  and  final  judge.77  Forgetting 
the  "  history  "  he  had  told  Mr.  Pierrepont,  and  then 
withdrawn,  in  1867,  he  actually  claims  that  he  "  was 
not  aware  that  any  member  of  Mr.  Johnson's  Cabi 
net  knew  of  his  having  seen  and  considered  the 
recommendation,"  and  that  he  "was  kept  in  pro 
found  ignorance  of"  "  this  important  information  " 
"  through  the  instrumentality  of  Mr.  Stanton  "  ! 

But,  were  it  credible  that  the  Judge- Advocate 
f<  supposed/'  as  he  says,  "  that  this  information  was 
confined  to  "  the  President  and  himself,  (not  even 
his  master,  Stanton,  knowing  anything  of  the  peti 
tion),  even  in  that  case  the  "  perils"  of  an  investiga 
tion,  which  he  affects  to  dread,  were  all  on  the  side  of 
his  adversary.  The  necessity  for  the  President  of 
the  United  States,  himself,  to  come  forward  as  the 
one  sole  witness  to  his  own  accusation — especially 
when  the  charge  involved  an  admission  of  his  own 
delinquency,  and  was  to  be  met  by  the  loud  and 
defiant  denial  of  his  arraigned  subordinate — was 
enough,  of  itself,  to  deter  the  Chief  Magistrate  of  a 
great  nation  from  descending  into  so  humiliating  a 
combat. 

But,  to  lay  no  stress  upon  this  consideration,  it 
must  be  manifest  to  any  one  acquainted  with  the 
state  of  public  feeling  at  the  time,  that  the  single, 
uncorroborated  testimony  of  the  maligned,  distrusted 
Andrew  Johnson,  branded  as  a  traitor  by  the  tri 
umphant  republican  party,  on  the  eve  of  impeach- 


202  MARY    E.    SURE  ATT. 

ment,  a  hostile  army  under  his  nominal  command, 
Stanton  harnessed  on  his  back,  unfriendly  private 
secretaries  pervading  his  apartments,  and  detectives 
in  his  bed-chamber ;  in  support  of  such  a  "  disloyal" 
charge,  disclosing,  as  it  was  sure  to  be  asserted,  a 
latent  remorse  for  the  righteous  fate  of  the  she-assas 
sin;  would  have  been  hailed  in  all  military  circles 
with  derision.  The  popular,  the  eminently  loyal, 
the  politically  sound  Judge-Advocate,  backed  by 
Stanton,  Bingham  and  Burnett,  by  his  Bureau  and 
his  Court,  by  General  Grant  and  the  Army,  had 
certainly  nothing  to  fear. 

But,  though  this  hero  of  so  many  courts- martial 
appears  to  have  had  no  mind  for  a  dose  of  his  own 
favorite  remedy,  he  began,  in  his  characteristic  secret 
way,  to  collect  testimony  corroborative  of  his  version 
of  the  confidential  interview.  He  writes  no  letter  to 
a  single  Cabinet  officer.  But,  immediately  after  the 
close  of  the  John  H.  Surratt  trial  (August  24,  1867), 
he  writes  to  General  Ekin  reminding  him  of  an  inter 
view,  soon  after  the  execution,  in  which  he  (Holt) 
mentioned  that  the  President  had  seen  the  petition ; 
and  he  obtains  from  that  officer  the  information  he 
sought.  In  January,  1868,  he  quietly  procures 
from  two  clerks  in  his  office,  letters  testifying  to  the 
condition  of  the  record  when  it  arrived  from  the 
Commission,  when  the  Judge- Advocate  took  it  to 
carry  to  the  President,  and  when  he  brought  it  back. 
It  is  needless  to  say  that,  though  these  clerks  state 
that  the  page,  on  which  the  petition  was  written,  and 


HER   VINDICATION.  203 

the  page,  on  which  the  latter  portion  of  the  death- 
warrant  was  written,  are  "  directly  face  to  face  to 
each  other;"  they  do  not  notice  that,  when  the  death- 
warrant  was  signed,  the  page,  on  which  the  petition 
was  written,  must  have  been,  either  under  the  other 
pages  of  the  record,  or  upside  down. 

In  this  same  month,  the  resolution  of  the  Senate 
refusing  to  concur  in  the  suspension  of  Stanton  was 
adopted  (January  13th,  1868).  General  Grant,  the 
Secretary  of  War  ad  interim,  in  violation  of  his 
promise  to  the  President,  as  alleged  by  the  latter, 
thereupon  surrendered  the  office  to  the  favorite  War- 
Minister,  who  thus  forced  himself  back  among  the 
confidential  advisers  of  the  President. 

On  the  21st  of  February,  the  President,  with  one 
last  desperate  stroke,  removed  him  from  office ;  and 
on  the  24th,  Andrew  Johnson  was  impeached  for 
this  "  high  crime." 

In  the  midst  of  his  troubles,  the  President  finds 
time  to  pardon  Dr.  Mudd  (Feb.  8th),  who  soon 
returns  to  his  family  and  friends. 

The  impeachment  trial  ends  May  26th,  the  Presi 
dent  escaping  conviction  by  but  one  vote;  and 
Stanton  at  last  lets  go  his  hold  on  the  War  office. 

In  December,  1868,  the  Judge- Advocate  is  pri 
vately  seeking  testimony  from  the  Rev.  J.  George 
Butler,  of  Washington,  the  minister  who  attended 
Atzerodt  in  his  last  moments,  whose  letter  of  the 
15th  is  most  satisfactory  on  Johnson's  belief  in  the 


204  MARY    E.    SURRATT. 

guilt  of  Mrs.  Surratt,  but    most  unsatisfactory  in 
regard  to  the  petition  of  mercy. 

On  the  1st  of  March,  1869,  among  the  last  acts 
of  his  stormy  administration,  the  President  undid, 
as  far  as  he  could  then  undo,  the  work  of  the  Mili 
tary  Commission  by  setting  Arnold  and  Spangler 
free ;  O'Laughlin  having  died  from  the  effects  of 
the  climate.  Had  the  five  officers  of  the  Military 
Commission  been  permitted  to  exercise  their  power 
of  mitigating  the  sentence  of  Mrs.  Surratt,  as  they 
did  in  the  cases  of  these  men,  or  had  the  Executive 
granted  their  prayer  for  clemency ;  the  President 
might  have  signalized  the  close  of  his  term  by  a 
still  more  memorable  pardon,  and  the  mother,  res 
cued  from  death  by  mercy,  would  have  joined  the 
son,  rescued  from  death  by  justice. 

During  the  four  years  of  the  first  administration 
of  President  Grant,  while  Andrew  Johnson  was 
fighting  his  way  back  to  his  old  place,  among  the 
people  of  Tennessee,  the  story  of  the  suppressed 
recommendation  ever  and  anon  circulated  anew  with 
unquenchable  vitality.  The  reappearance  of  Mudd, 
Spangler  and  Arnold,  as  free  men  ;  the  "  doubtful  " 
death  of  Stanton,  "  with  such  mained  rites "  of 
burial,  as  might  "betoken 

The  corse,  they  follow,  did  with  desperate  hand 
Fordo  its  own  life ; " 

every    incident    connected    in    any    way    with    the 
tragedy  of  the  woman's  trial  and  death,  and  every 


HER   VINDICATION.  205 

prominent  event  in  the  career  of  the  men  who  had 
surrounded  the  illstarred  successor  of  the  murdered 
Lincoln  in  the  awful  hour  of  his  accession,  revived 
the  irrepressible  question ;  and  the  friends  of  Mrs. 
Surratt's  memory,  and  the  friends  of  Johnson, 
alike,  each  by  their  own  separate  methods,  on  every 
such  opportunity,  appealed  and  re-appealed  to  the 
public,  asserting  again  and  again  the  suppression  of 
the  plea  for  mercy,  propagating  what  General  Holt 
brands  as  "  the  atrocious  accusation,"  or,  as  he  else 
where  characterizes  their  actions,  u  for  long  years 
wantonly  and  wickedly  assailing"  the  ex- Judge- 
Advocate.  And  yet,  during  all  these  years,  the 
baited  hero  is  silent.  He  lies  low.  As  far  as 
appears,  he  makes  no  further  efforts  to  secure  testi 
mony.  His  friend  and  old  associate,  Bingham,  is 
by  his  side,  yet  he  makes  no  appeal  to  him.  He 
keeps  close  by  him  the  letters  he  has  already  secured 
to  substantiate  his  own  version  of  the  confidential 
interview.  But  he  seeks  for  no  Cabinet  testimony. 
His  stern  master  in  the  War  Department,  after  the 
acquittal  of  the  President,  lays  down  his  sceptre, 
and  then,  though  the  deadliest  enemy  of  Johnson, 
is  allowed  to  die  in  silence.  Seward  lives  on  and  is 
asked  to  give  no  help.  The  ex-Judge-Advocate 
still  lies  low. 

At  length  came  the  appointed  time. 

William  H.  Seward  died  on  the  12th  day  of 
October,  1872. 


206  MARY   E.    SURRATT. 

On  the  llth  day  of  February,  1873,  Gen.  Holt 
makes  his  appeal  for  testimony  from  the  officers  of 
Johnson's  first  Cabinet,  by  letter  to  John  A.  Bing- 
ham,  requesting  him  to  furnish  his  recollections  of 
the  late  Stanton  and  the  late  Seward.  On  March 
30th,  1873,  he  writes  to  James  Speed,  Ex- Attorney- 
General,  inclosing  a  copy  of  Bingham's  reply.  On 
May  21st,  1873,  he  writes  to  James  Harlan,  Ex- 
Secretary  of  the  Interior,  inclosing  a  copy  of  Bing 
ham's  reply.  In  July,  1873,  he  writes  to  General 
Mussey,  once  Johnson's  private  secretary;  and,  in 
August,  armed  with  the  answers  of  these  corres 
pondents  and  with  the  letters  he  had  gathered  in 
1867  and  1868,  and  unprovoked  by  any  revivifica 
tion  of  the  old  charge,  he  rushes  into  the  columns  of 
the  Washington  Chronicle  with  his  formidable 
"  Vindication." 


CHAPTER  IV. 
THE  TRIAL  OF  JOSEPH  HOLT. 

ON  the  threshold  of  his  Vindication,  Gen.  Holt 
revives  the  discredited  and  apparently  for 
gotten  declaration  made  by  Mr.  Pierrepont  on  the 
trial  of  John  H.  Surratt,  and  stakes  his  whole  case 
upon  the  establishment  of  the  truth  of  the  allegation 
that  the  petition  for  commutation,  attached  as  it  was 
to  the  record  of  the  findings  and  sentences  of  the 
Military  Commission,  was  the  subject  of  considera 
tion  at  a  meeting  of  the  Cabinet  of  President  Johnson, 
and  its  prayer  rejected  with  the  concurrence  of  the 
members  present  at  such  meeting. 

So  long  as  the  contention  is  limited  to  what  took 
place  during  that  momentous  hour  between  the 
President  and  himself,  "  alone,"  with  the  light  thrown 
upon  it  by  the  record  including  the  endorsed  death- 
warrant  and  the  affixed  paper,  he  exhibits  a  certain 
lack  of  confidence  in  the  strength  of  his  defense. 
For,  although  he  prints  the  "  circumstantial  evi 
dence,"  as  he  calls  it,  to  sustain  his  own  version  of 
the  "  confidential  interview  "  (consisting  of  the  two 
letters  from  his  former  clerk,  heretofore  alluded  to, 
and  the  letter  from  Gen.  Mussey  saying  that  the 

207 


208  MARY    E.    SURRATT. 

"acting  President"  told  him  of  the  recommendation 
"  about  that  time  "),  he  confesses  it  was  not  until  he 
recently  had  secured  certain  testimony  that  the  peti 
tion  had  been  considered  by  officers  of  the  Cabinet, 
that  he  at  length  felt  his  case  strong  enough  to  war 
rant  a  public  challenge  of  his  adversary,  and  himself 
justified  in  submitting  it  to  the  public. 

In  short,  we  have  a  sort  of  reversal  of  the  position 
of  six  years  before.  Then,  after  having  at  first  put 
forward  the  assertion  that  the  petition  was  considered 
by  the  Cabinet,  the  Judge-Advocate  summarily  sup 
presses  that  branch  of  his  case,  and  puts  into  the 
foreground  the  explicit  asseveration  of  the  identical 
paper  being  "  right  before  the  President's  eyes " 
when  he  signed  the  death-warrant.  "  He  wants  no 
misunderstanding  about  that."  Now,  while  he  keeps 
in  mind,  it  is  true,  this  version  of  the  confidential 
interview,  he  relegates  it  to  the  rear,  and  constitutes 
the  Cabinet  consideration  the  very  citadel  of  his  cause. 

As  to  what  takes  place  at  a  meeting  of  the  Cabi 
net,  its  members  of  course  are  the  first,  if  not  the 
only,  witnesses.  And  it  is  a  matter  of  surprise  that 
General  Holt,  so  far  as  is  apparent,  never,  in  all 
these  past  years,  applied  to  any  one  of  them  to  sub 
stantiate  so  essential  a  part  of  his  vindication.  He 
states  that  he  has  always  been  satisfied  that  the 
matter  must  have  been  considered  in  the  Cabinet, 
and  adds  that  "  from  the  confidential  character  of 
Cabinet  deliberations  "  he  has  "  thus  far  been  denied 
access  to  this  source  of  information."  But  he  does 


HER   VINDICATION.  209 

not  say  when,  or   to  whom,   he  applied   for  such 
"access/'  or  how  he  had  been  "denied."     It  is  cer 
tain,  from  what  he  says  elsewhere,  that  he  never 
applied  to  Stanton  or  to  Seward ;  he  admits  in  a 
subsequent  communication  that  he  never  applied  to 
McCulloch,  Welles  or   Dennison ;    and,   from   the 
tenor  of  their  letters  now  in  reply  to  his,  it  appears 
he  never  applied  before  to  Harlan  or   to  Speed. 
And  these  are  all  the  members  of  the  Cabinet  of 
President  Johnson  in  July,  1865.      Moreover,  he 
does  not,  even  now,  in  1873,  make  application  in 
the  first  instance  to  an  ex-Cabinet  officer.     His  first 
application  is  made  to  John  A.  Bingham,  his  old 
colleague  in  the  prosecution  of  Mrs.  Surratt,   for 
Cabinet  information  in  the  shape  of  conversations 
with  the  two  ministers,  who,  after  so  many  years  of 
unsolicited  silence  in  life,  are  now  silent,  beyond  the 
reach  of  solicitation,  in  death.     And  it  is  not  until 
he  has  secured  the  desired  information,  which  he 
would  have  us  believe  was  entirely  unexpected,  that 
he  is  stirred  up  to  the  necessity  of  a  public  vindi 
cation  of   his  character ;    and  then  he  selects  the 
two   of    the   surviving   ministers   of   the  Cabinet, 
known  to  be  hostile  to  the  ex-President,  as  the 
objects  of  solicitation,  sending  them,  as  a  spur  to 
their  recollections,  the  letter  containing  the  reminis 
cences  of  his  serviceable  ally.    But,  by  some  fatality, 
the  industrious  inquirer  takes  nothing  by  his  some 
what  complicated  manoeuvre.     The  letters  he  pro 
duces  from  Cabinet  officers  afford  him  no  assistance. 
14 


210  MARY    E.    SURRATT. 

Judge  Harlan  can  recall  only  an  informal  discussion 
by  three  or  four  members  of  the  Cabinet  (Seward, 
Stanton,  himself  and  probably  Speed)  of  the  ques 
tion  of  the  commutation  of  the  sentence  of  Mrs. 
Surratt  because  of  her  sex ;  which,  she  being  the 
one  woman  under  condemnation,  would  surely 
arise  in  a  tribunal  of  gentlemen,  whether  there  was 
a  recommendation  or  not,  as  in  fact  it  did  even 
among  the  stern  soldiers  of  the  Military  Commis 
sion.  But  the  writer,  who,  as  Senator  from  the 
State  of  Iowa,  had  voted  for  the  conviction  of  Presi 
dent  Johnson,  makes  the  positive  declaration,  that 
"  no  part  of  the  record  of  the  trial,  the  decision  of 
the  court,  or  the  recommendation  of  clemency  was 
at  that  time  or  ever  at  any  time  read  in  my  (his) 
presence."  He  remembers,  with  undoubting  dis 
tinctness,  inquiring  at  the  time  whether  the  Attorney- 
General  had  examined  the  record,  and  was  told  that 
the  whole  case  had  been  carefully  examined  by  the 
Attorney-General  and  the  Secretary  of  War;  and 
he  states  that  the  question  was  never  submitted  to 
the  Cabinet  for  a  formal  vote. 

This  letter  is  most  significant,  both  for  what  it 
says  and  for  what  it  refrains  from  saying.  Its  posi 
tive  statement  annihilates  the  story  of  a  "full  Cabi 
net"  when  "  the  vote  of  every  member  v  was  adverse, 
and  indeed  of  any  Cabinet  meeting  whatever,  where 
the  paper  was  present  and  considered — such  a  story 
as  Judge  Pierrepont  first  gathered  from  the  "  voice  " 
of  Holt ;  and  the  absence  of  all  affirmation  that  the 


HER  VINDICATION.  211 

writer  had  either  seen  or  heard  of  the  recommenda 
tion,  while  he  expressly  states  that  it  was  never  read 
in  his  presence  (considering  the  occasion  and  object 
of  the  letter  and  the  bias  of  the  ex-Senator),  warrants 
the  conclusion  that  such  a  document  was  not  men 
tioned  at  the  informal  Cabinet  consultation  he 
describes. 

In  any  view,  the  letter  furnishes  no  support  to 
Holt's  contention.  The  writer  expressly  negatives 
the  presence  of  the  record  and  the  paper,  and  he  does 
not  affirm  that  such  a  petition  was  alluded  to,  in 
terms,  in  the  discussion  in  the  presence  of  the  Presi 
dent  ;  which  he  surely  would  have  done,  in  aid  of  his 
sorely  tried  friend,  if  such  had  been  the  fact. 

The  Judge-Advocate  fares  even  worse  at  the  hands 
of  the  Ex- Attorney-General.  Here  is  a  man  who 
knew,  if  any  other  member  of  the  Cabinet  except 
Stanton  knew,  whether  the  paper  in  question  ever 
came  up  for  discussion  before  the  President  in  his 
Cabinet.  He  goes  so  far  as  to  say  that,  after  the 
findings  and  before  the  execution,  he  saw  the  paper 
attached  to  the  record  "  in  the  President's  office ; " 
a  statement  which  reminds  us  of  another  of  the 
same  elusive  and  evasive  character,  (that  the  paper 
was  "  before  the  President  "),  and,  like  that,  affirms 
nothing  one  way  or  the  other  as  to  the  consciousness 
of  the  President  of  its  presence. 

And  then  he  proceeds  as  follows : 

"  I  do  not  feel  at  liberty  to  speak  of  what  was 
said  at  Cabinet  meetings.  In  this  I  know  I  differ 


212  MARY   E.   SURE  ATT. 

from  other  gentlemen"  (presumably  an  allusion 
to  the  Seward  and  Stanton  of  Bingham's  letter), 
"  but  feel  constrained  to  follow  my  own  sense  of 
propriety." 

His  friend's  necessity  would  have  been  met  by 
something  less  than  a  repetition  of  what  was  said 
at  Cabinet  meetings.  He  had  only  to  tell  whether 
he  saw  a  certain  paper  (not  in  the  President's 
office),  but  at  a  meeting  of  the  President  and  his 
advisers,  or  knew  of  the  recognition  there  of  its 
mere  existence ; — a  revelation  which  would  not 
have  violated  the  most  punctilious  sense  of  official 
propriety;  and  he  feels  constrained  to  withhold  the 
least  ray  of  light  upon  so  simple  a  question. 

The  witness  "  declines  to  answer." 

Ten  years  after  the  present  controversy,  Judge 
Holt,  feeling  acutely  this  weak  point  in  his  vindica 
tion,  again  appeals  to  Speed,  in  the  most  moving 
tones,  to  break  his  unaccountable  silence  and  rescue 
his  friend's  gray  head  from  "  the  atrocious  accusa 
tion,"  "  known  to  him  to  be  false  in  its  every 
intendment,"  with  which  that  perfidious  monster, 
dead  now  eight  years,  and,  (as  Holt  significantly 
quotes),  "gone  to  his  own  place,"  sought  "  to  blacken 
the  reputation  of  a  subordinate  officer  holding  a  con 
fidential  interview  with  him." 

And,  strange  to  say,  Speed  first  neglects  even  to 
reply  to  Holt's  repeated  communications  for  six 
months,  and  then  just  opens  his  lips  to  whisper,  "I 
cannot  say  more  than  I  have  said."  He  had  offered 


HER   VINDICATION.  213 

in  private  (if  we  may  credit  Holt)  to  write  a  letter 
to  his  aggrieved  friend,  giving  him  the  desired 
information,  "  but  not  to  be  used  until  after  Holt's 
death  ; "  a  proposition  quite  naturally  discouraged 
by  Holt,  who  made  this  sensible  reply  :  "  that  a 
letter  thus  strangely  withheld  from  the  public  would 
not,  when  it  appeared,  be  credited." 

But,  when  repeatedly  implored  to  spread  "  the 
desired  information "  before  the  public,  he  again 
declines  to  answer.  James  Speed  would  not  tell  the 
truth,  when  by  telling  the  truth  he  might  relieve 
his  old  friend  in  "  the  closing  hours  of  his  life  "  from 
a  most  damnable  calumny,  because,  forsooth,  "of 
his  sense  of  propriety."  He  could  not  violate  the 
secrecy  of  a  Cabinet  meeting,  held  nearly  twenty 
years  before ;  a  secrecy  which  he  had  good  reason  to 
believe  had  already  been  broken,  in  the  professed 
interest  of  truth,  by  three  of  his  own  colleagues,  and, 
in  the  alleged  interest  of  a  most  foul  falsehood,  by 
the  President  himself. 

Before  the  Judge  finally  gives  up  his  old  associate 
as  hopeless,  he  craftily  points  out  to  him  a  way  by 
which  the  ex-Cabinet  officer  may  give  his  testimony 
without  violating  the  most  punctilious  sense  of  pro 
priety,  not  only,  but  without  departing  one  iota  from 
the  literal  truth.  Since  his  first  letter,  General 
Holt  informs  him  :  "I  have  learned  that  although 
you  gained  the  information  while  a  member  of  the 
Cabinet,  it  was  not  strictly  in  your  capacity  as  such, 
but  that  at  the  moment  I  laid  before  the  President 


214  MARY   E.   SURRATT. 

the  record  of  the  trial,  with  the  recommendation  for 
clemency  on  behalf  of  Mrs.  Surratt,  you  chanced  to 
be  so  situated  as  to  be  assured  by  the  evidence  of 
your  own  senses  that  such  petition  of  recommenda 
tion  was  by  me  presented  to  the  President,  and  was 
the  subject  of  conversation  between  him  and  myself." 
Does  this  mean  that  Speed  was  an  unseen  spectator 
of  the  confidential  interview,  and  witnessed  the  writ 
ing  of  the  death-warrant  ?  At  all  events,  for  some 
reason,  the  ex- Attorney-General  was  afraid  to  accept 
this  opportunity  to  equivocate. 

Holt  may  well  wonder  at  Speed's  obstinate  silence. 
He  exclaims  :  "  It  is  a  mystery  to  me."  It  will  be 
a  mystery  to  every  one,  provided  the  black  charge 
was  false.  But,  on  the  hypothesis  that  the  charge 
was  true,  that  the  paper  was  suppressed,  either 
actually  or  virtually,  there  is  no  mystery. 

Had  Speed  known  that  the  paper  was,  not  only 
"  before v  the  President,  but  considered  by  him, 
either  in  or  out  of  the  Cabinet,  it  is  beyond  the  limit 
of  human  credulity  to  believe,  for  a  moment,  that, 
with  all  possible  motives  to  lead  him  to  succor  his 
friend,  and  with  none  to  lead  him  to  shield  the 
character  of  his  dead  political  foe,  he  would  not  have 
uttered  the  one  decisive  word  in  the  controversy. 
And  he  comes  as  near  doing  so  as  he  dares,  evidently. 
He  shows,  in  1873,  a  yearning  to  help  his  old  friend 
— a  yearning  so  strong  that  we  may  be  sure  it  was 
not  the  frivolous  pretext  of  "official  propriety" 
which  constrained  him,  then,  much  less  in  1883. 


HER   VINDICATION.  215 

If  he,  too,  as  Holt  said  of  Stanton,  feared  the 
resentment  of  the  dethroned  Johnson  in  life,  he 
certainly  could  not  have  feared  the  resentment  of 
Johnson's  ghost  after  death. 

He  must  be  numbered  among  those  who, 

"  With  arms  encumbered  thus,  or  this  head-shake, 
Or  by  pronouncing  of  some  doubtful  phrase, 
As,  '  Well,  well,  we  know  ;'  or  '  We  could,  an'  if  we  would  ;'  or 
'  If  we  list  to  speak  ;'  or  '  There  be,  an'  if  they  might ; '  " 

"ambiguously  give  out"  to  know  what  they  are 
sworn  "  never  to  speak  of."  If  there  was  any  oath- 
guarding  "  fellow  in  the  cellarage,"  rest  assured  it 
was  not  the  pale  wraith  of  the  hood-winked  John 
son,  but  the  blood-boltered  spectre  of  his  once  wide- 
ruling  Minister  of  War. 

Amid  such  a  dearth  of  direct  explicit  testimony 
of  members  of  the  Cabinet  about  a  disputed  Cabi 
net  incident,  it  is  curious  and  interesting  to  watch 
the  assiduous  ex-Judge-Advocate,  with  the  most 
ingenious  and  industrious  sophistry,  attempt  to 
extract  corroboration  from  the  statements  of  the 
two  ex-Cabinet  officers,  whom  he  has  induced  to 
speak,  where  in  truth  no  corroboration  can  be 
found. 

After  all  his  efforts,  he  is  forced  at  last  to  fall 
back  upon  the  single  testimony  of  the  one  man 
without  whose  encouraging  information  he  frankly 
informs  us  he  would  not  have  dared  to  come  before 


216  MARY   E.    SURRATT. 

the  people,  and  upon  whom  he  brings  himself  to 
believe  he  might  safely  rest  his  defense.  That  man 
is  John  A.  Bingham,  now,  as  once  before,  Special 
Assistant  Judge- Advocate  to  Joseph  Holt. 

During  the  eight  years  which  had  elapsed  since 
their  crowning  achievement  of  hanging  a  woman 
for  the  murder  of  Abraham  Lincoln,  these  two  men 
had  lived,  for  a  considerable  portion  of  the  time,  in 
the  same  city.  They  were  together  in  the  contest 
over  reconstruction  and  impeachment,  standing  in 
the  front  rank  of  the  enemies  of  Johnson.  They 
were  both  at  the  Capital  during  the  trial  of  John 
H.  Surratt,  when  the  ghastly  reminiscences  of  the 
trial  of  the  mother  along  with  seven  chained  men 
must  have  drawn  the  two  military  prosecutors  into 
a  most  sympathetic  union. 

And  yet  when,  in  February,  1873,  Joseph  Holt 
sits  down  in  Washington  to  write  his  letter  of 
inquiry  to  John  A.  Bingham,  then  in  the  same  city, 
he  would  have  us  believe  that  he  had  never  before 
poured  into  the  bosom  of  his  old  colleague  his  own 
sufferings  over  the  frightful  calumny  so  long  poison 
ing  the  very  air  he  breathed,  never  before  told  him 
his  embarrassment  over  the  difficulty  to  elicit  evi 
dence  from  Cabinet  officials,  never  before  besought 
his  friend  for  his  own  powerful  testimony  on  the 
side  of  his  persecuted  fellow-official. 

He  writes  to  his  former  assistant,  as  though  the 
information  were  now  communicated  for  the  first 
time,  that  the  President  and  he  were  alone  when 


HER    VINDICATION.  217 

the  record  was  presented  and  the  death-warrant 
signed  ;  that  he  had  always  been  satisfied  the  peti 
tion  was  considered  in  a  Cabinet  meeting,  but  has 
hitherto  been  unable  to  obtain  any  evidence  upon 
that  point;  and  then,  in  an  artless,  ingenuous  man 
ner,  as  if  putting  the  question  for  the  first  time,  asks 
his  correspondent  whether  or  not  he  had  had  a  con 
versation  with  William  H.  Seward,  Secretary  of 
State  under  President  Johnson,  in  reference  to  the 
petition,  and  "  if  so,  state  as  nearly  as  you  may  be 
able  to  do  all  he  said  on  the  subject;"  with  a  like 
request  as  to  Edwin  M.  Stanton,  Secretary  of  War. 

With  a  diviner's  skill  he  selects  the  two  members 
of  the  Cabinet  who  are  then  dead ;  and,  not  to  dis 
appoint  him,  Bingham,  in  a  letter  from  Washington 
six  days  later,  informs  him  that  he  has  struck  the 
two-fold  mark.  WTith  the  same  apparent  artlessness 
which  characterizes  the  letter  of  inquiry,  this  useful 
advocate  now,  as  if  for  the  first  time,  discloses  to 
his  long-tried  colleague,  that  he  did  indeed  have  a 
conversation  with  each  of  the  eminent  men  he  had 
hit  upon,  who  are  now,  alas !  dead. 

Judge  Bingham  is  a  most  willing  witness.  He 
relates  with  great  circumstantiality  that  "  after  the 
Military  Commission  had  tried  and  sentenced  the 
parties "  he  "  prepared  the  form  of  the  petition  to 
the  President."  He  then  gives  the  form  thus  pre 
pared  as  he  now  recollects  it  (in  which  there  are 
two  significant  mistakes) ;  he  states  that  he  wrote  it 
with  his  own  hands,  that  General  Ekin  copied  it, 


218  MARY    E.    SURRATT. 

and  the  five  signed  the  copy ;  as  if  all  this  particu 
larity  had  any  relevance  to  the  question  at  issue,  as 
if  the  point  in  dispute  was  the  existence  of  the 
paper,  and  not  its  suppression  at  a  critical  moment 
after  it  was  written.  He  affects  to  believe  it  neces 
sary  to  state  to  his  old  colleague,  that  he  "  deemed  it 

v  O  / 

his  duty  to  call  the  attention  of  Secretary  Stanton 
to  the  petition,  and  did  call  his  attention  to  it  before 
the  final  action  of  the  President ;" — as  if  it  were 
among  the  possibilities,  that  the  head  of  the  War 
Department  could  in  any  case  have  overlooked  so 
important  a  paper,  much  less  that  the  imperious 
Chief  of  this  very  prosecution  could  have  been  kept 
in  ignorance,  one  hour,  of  what  was  done  by  his  tools. 
The  Special  Assistant,  however,  at  last  comes  to 
the  point : 

"  After  the  execution,  the  statement  to  which  you  refer  was 
made  that  President  Johnson  had  not  seen  the  petition  for  the 
commutation  of  the  death  sentence  upon  Mrs.  Sun-alt.  I 
afterwards  called  at  your  office,  and,  without  notice  to  you  of 
my  purpose,  asked  for  the  record  in  the  case  of  the  assassins. 
It  was  opened  and  shown  me,  and  there  was  then  attached  to 
it  the  petition,  copied  and  signed  as  hereinbefore  stated." 

Oh,  what  an  artless  pair  of  correspondents  !  The 
former  Special  Assistant  tells  the  former  Judge- 
Advocate  how  he  played  the  detective  on  him  to  his 
friend's  justification  ;  "  without  notice  of  my  purpose"  ! 

"Soon  thereafter  I  called  upon  Secretaries  Stanton  and  Sew- 
ard,  and  asked  if  this  petition  had  been  presented  to  the  Presi 
dent  before  the  death-sentence  was  by  him  approved,  and  was 


HER   VINDICATION.  219 

answered  by  each  of  those  gentlemen  that  the  petition  was 
presented  to  the  President,  and  was  duly  considered  by  him 
and  his  advisers,  before  the  death-sentence  upon  Mrs.  Surratt 
was  approved,  and  that  the  President  and  the  Cabinet  upon 
such  consideration  were  a  unit  in  denying  the  prayer  of  the 
petition ;  Mr.  Stanton  and  Mr.  Seward  stating  that  they  were 
present." 

In  weighing  the  credibility  of  this  statement,  so 
conclusive  if  true,  two  considerations  should  be  borne 
in  mind. 

1.  That  we  have  here,  not  the  testimony  of  either 
Seward  or  Stanton,  but  the  testimony  of  a  man  who, 
if  the  paper  was  in  fact  suppressed,  must  have  been 
a  participant  in  the  foul   deed.     For  no   one  will 
believe,  for  a  moment,  that  Joseph  Holt  would  have 
dared  to  perpetrate,  if  he  could,  or  could  have  per 
petrated,  if  he  dared,  so  unspeakable  a  wickedness, 
without  the  knowledge  and  cooperation  of  his  fiery 
leader  in  the  conduct  of  the  trial. 

2.  If  this  decisive  information  was  in  the  posses 
sion  of  Judge  Bingham  at  so  early  a  date  as  "  soon 
after  the  execution/7  why  had  he  not  communicated 
it  to  his  distressed  partner  while  Stanton  and  Seward 
lived  ?    He  had  taken  pains  to  obtain  it  to  meet  the 
ugly  stories  that  were  even  then  circulating  against 
the  Judge- Advocate.    He  knew  it  at  the  time  of  the 
struggle  at  close  quarters  over  the  petition  during 
the  Surratt  trial,  and  he  must  have  been  cognizant 
of  the  fact,  that  for  the  lack  of  it,  that  officer  had 
been  forced  to  withdraw  the  allegation  of  a  full  Cabi 
net  consideration  of  the  petition,  which  he  had  at 


220  MARY   E.    SURRATT. 

first  prompted  the  counsel  of  the  United  States 
boldly  and  publicly  to  make. 

After  the  trial  the  reports  grew  louder  and  louder, 
until  it  was  everywhere  said  that  Andrew  Johnson 
habitually  declared  that  he  had  never  seen  the  paper. 
Holt  ran  hither  and  thither  collecting  testimony 
from  all  available  quarters.  Hear  Holt  himself: 
"  Every  time  the  buzz  of  this  slanderous  rumor 
reached  him  (Bingham)  during  the  last  eight  years 
— which  was  doubtless  often — his  awakened  memory 
must  have  reminded  him  that  he  held  in  his  keeping 
proof  that  this  rumor  was  false."  Why  did  not  his 
former  assistant  even  relieve  his  tremendous  anxiety 
by  telling  him  that  he  had  evidence  which  would 
blow  the  calumny  into  the  air?  General  Holt,  in  a 
letter  in  reply  to  Bingham's,  dated  at  Washington 
the  next  day,  which  he  also  prints  in  his  Vindication, 
says : 

"It  would  have  been  fortunate  indeed,  could  I 
have  had  this  testimony  in  my  possession  years  ago." 

He  calls  its  concealment  "  a  sad,  sad  mockery." 
Yes;  and  why  was  Judge  Bingham  willing  to  perpe 
trate  such  a  "  mockery,"  and  continue  the  "  mockery  " 
until  Stanton's  death,  and  then  until  Seward's  death, 
which  occurred  only  a  few  months  before  he  at  last 
enlightens  his  colleague?  Can  the  most  credulous 
of  men  believe  that,  during  all  these  years,  he  was 
guilty  of  such  cruelty  as  not  even  to  whisper  such 
welcome  intelligence  into  the  ears  of  his  sorely  dis 
tressed  brother  officer  ? 


HER   VINDICATION.  221 

And  what  shall  we  say  of  William  H.  Seward? 

If  thai  great  man  told  Judge  Bingham  in  1865 
what  the  Judge,  after  Seward  was  dead,  first  says  he 
did,  why  had  William  H.  Seward  kept  silent  so 
many  years,  and  at  last  died  and  made  no  sign  ?  He 
must  have  heard  the  charge,  so  infamous  if  false, 
and,  if  Judge  Bingham  be  believed,  he  must  have 
known  it  to  be  false. 

He  must  have  heard  the  statement  of  Judge 
Pierrepont  in  open  court  in  1867.  He  must  have 
known  of  the  President's  sending  for  the  record  and 
of  the  explosion  thereupon  in  the  Department  of 
War.  Why  did  he  not  at  that  crisis  come  forward 
with  the  proof  of  which  the  Judge- Advocate  was  so 
dreadfully  in  need  ? 

The  Secretary  of  State  could  not  have  intrenched 
himself  behind  the  inviolability  of  proceedings  of 
Cabinet  meetings,  as  did  the  over-scrupulous  Attor 
ney-General,  because,  according  to  Judge  Bingham, 
he  himself  had  betrayed  the  secret  long  before. 

And  why  did  not  Judge  Bingham  force  him  to 
speak,  or  else  make  public  his  interview  with  him, 
while  Seward  was  alive  and  could  either  affirm  or 
contradict  it  ? 

No,  these  two  eminent  lawyers,  yoked  together  as 
the  common  mark  of  what  they  call  a  "  most  atro 
cious  slander,"  originating  with  a  President  of  the 
United  States,  bruited  about  everywhere  both  in  offi 
cial  and  private  circles,  wait  eight  long  years,  and 
until  after  the  death  of  the  head  of  that  President's 


222  MARY    E.    SURRATT. 

Cabinet,  from  whose  lips  one  of  them  at  least  had 
heard  at  its  very  inception  a  solemn  refutation  of  the 
black  lie,  before  they  venture  to  proclaim  it  to  the 
world. 

Mr.  Bingham  admits  in  his  letter  that,  in  1865, 
"  he  desired  to  make  "  the  facts  he  had  ascertained 
"public."  Why  did  he  not  "make  public"  what 
Seward  had  told  him,  while  Seward  was  living  ? 

He  furnishes  no  answer  to  this  question,  and  until 
he  does,  his  testimony  on  the  matter  is  tainted  with 
a  most  reasonable  suspicion. 

And,  besides,  what  we  know  of  the  situation  of 
the  Secretary  of  State  at  the  time  of  the  execution  of 
Mrs.  Surratt,  of  his  subsequent  career,  and  of  his 
lofty  character  as  a  man,  is  sufficient  to  stamp  the 
account  of  Judge  Bingham  as  incredible. 

William  H.  Seward,  one  of  the  most  distinguished 
statesmen  of  the  era  of  the  civil  war,  one  of  the  most 
illustrious  founders  of  the  republican  party,  and  one 
of  the  most  trusted  advisers  of  Abraham  Lincoln, 
remained  in  the  Cabinet  of  Andrew  Johnson  until  the 
close  of  his  administration.  He  united  in  the  pardon 
of  Mudd,  Spangler  and  Arnold.  He  stood  by  the 
President  fearlessly  in  the  dark  days  of  the  impeach 
ment,  and  when  the  President  had  become  the  target 
of  the  daily  curses  of  thousands  of  Se ward's  former 
political  friends.  Had  he  known  that  the  accusation 
against  General  Holt  was  false,  and  at  the  same  time 
heard  the  daily  reiteration  of  its  truth  from  the  lips 
of  his  Chief,  he  would  not  have  remained  an  hour  in 


HER   VINDICATION.  223 

the  Cabinet  of  such  a  monumental  slanderer.  So 
far  from  allowing  the  ceremonial  restraints  of  Cabi 
net  rules  to  make  him  a  silent  accomplice  in  a  foul 
falsehood,  he  would  have  proclaimed  the  truth,  if 
necessary,  even  from  the  steps  of  the  Capitol. 

Mr.  Seward,  at  the  time  of  the  execution  of  Mrs. 
Surratt,  could  have  but  barely  recovered  from  the 
broken  jaw  and  broken  arm  from  which  he  was 
suffering,  when  he  bore  the  savage  assault  of  Payne, 
and  from  the  grievous  wounds  which  that  mad  ruf 
fian  inflicted.  One  of  his  sons  was  still  incapacitated 
because  of  injuries  from  the  same  hand,  and  his  wife 
died  June  21st,  1865.  It  is  not  at  all  probable  that, 
in  such  dolorous  circumstances,  he  would  be  required 
to  give  close  attention  to  a  subject  entirely  outside 
of  the  duties  of  his  department,  and  in  which  his 
personal  feelings  as  a  sufferer  were  so  deeply  involved. 
He  said  himself  under  oath  to  a  Congressional  Com 
mittee  :  "  Having  been  myself  a  sufferer  in  that 
business,  the  subject  would  be  a  delicate  one  for  me 
to  pursue  without  seeming  to  be  over-zealous  or 
demonstrative." 

In  spite  of  the  eight-years-embalmed  testimony  of 
a  hundred  Binghams,  we  would  not  believe  that  the 
uncomplaining  victim  of  Payne  voted  to  deny  the 
Petition  of  Mercy. 

While  no  attempt  is  made  to  explain  the  silence 
of  Seward  during  his  lifetime,  or  the  silence  of  Judge 
Bingham  himself  regarding  the  information  he  got 
from  Seward,  this  willing  witness  does  give  a  most 


224  MARY    E.    SURRATT. 

singular  and  perplexing  explanation  of  his  long 
silence  regarding  the  information  he  got  from  Stanton. 

He  says:  (in  the  same  letter)  "Having  ascer 
tained  the  fact  as  stated,  I  then  desired  to  make  the 
same  public,  and  so  expressed  myself  to  Mr.  Stanton, 
who  advised  me  not  to  do  so,  but  to  rely  upon  the 
final  judgment  of  the  people." 

General  Holt,  in  a  subsequent  article,  states  that 
Stanton  "enjoined  upon  the  Judge  silence  in  refer 
ence  to  the  communication." 

We  are  called  upon  to  believe  that  the  Secretary 
of  War,  at  the  very  first  interview  with  Judge  Bing- 
ham,  when,  upon  the  theory  of  the  truth  of  the 
information,  there  could  have  been  no  conceivable 
motive  for  its  concealment,  advised  his  inquiring 
friend  to  suppress  a  fact  essential  to  the  refutation  of  a 
despicable  slander,  blotting  the  fair  name  of  a  brother 
oificer.  Not  only  this ;  but  that  the  Secretary  con 
tinued  the  injunction  of  silence  during  all  the  years 
the  terrible  charge  was  being  bandied  about  on  the 
lips  of  men  to  the  daily  torment  of  the  poor  man  so 
cruelly  assailed.  As  General  Holt  says  :  "  It  was 
a  deliberate  and  merciless  sacrifice  of  me,  so  far  as 
he  could  accomplish  it.'' 

And  he  "  enforced  "  the  "  silence  "  up  to  the  day 
of  his  death. 

But  we  ask  what  reason  had  the  "Great  War 
Minister "  "to  perpetrate  so  pitiless  an  outrage?" 
Why,  in  the  days  of  the  trial  of  John  H.  Surratt, 
why,  in  the  days  of  his  stern  enmity  towards  the 


HER   VINDICATION.  225 

President,  when  his  removal  furnished  the  main 
ground  of  impeachment,  did  he  not  once  speak  out 
for  his  slandered  servant,  or  even  unlock  the  sealed 
lips  of  the  obedient  Bingham  and  suffer  him  to  tell 
the  truth  ? 

General  Holt,  in  1883,  on  affirming  in  the  text  of 
his  article  that  "  Messrs.  Seward  and  Stanton  declared 
the  truth  to  Judge  Bingham/'  adds  the  following 
explanatory  note : 

"This  praise  was  certainly  due  to  Mr.  Seward, 
but  not,  in  strictness,  to  Mr.  Stanton,  since  on  mak 
ing  the  communication  to  Judge  Bingham,  he  endeav 
ored  and  successfully,  to  prevent  him  from  giving  it 
publicity. 

"  The  fear  of  Andrew  Johnson's  resentment,  added 
to  a  determination  on  his  part  to  leave  my  reputa 
tion — then  under  fire  from  his  silence — to  its  fate, 
sufficiently  explain  his  otherwise  inexplicable  con 
duct." 

But  does  it  ?  Is  this  in  truth  a  sufficient  expla 
nation  ? 

Stanton,  the  stern  War  Minister,  fear  the  resent 
ment  of  Andrew  Johnson  !  When  was  he  taken 
with  it?  When  he  bearded  the  President  in  his 
Cabinet?  When  he  defied  him  in  the  War  Depart 
ment,  and  scattered  his  missive  of  removal  to  the 
winds?  Or  did  he  wait  to  begin  to  fear  him  until 
the  President  retired  to  private  life,  just  escaping 
conviction  by  impeachment,  and  shorn  of  all  popu 
larity  North  or  South  ?  The  preposterous  nature  of 
15 


226  MARY    E.    SURRATT. 

the  cause  assigned  casts  suspicion  upon  the  assignor 
himself.  As  to  the  second  cause,  we  are  at  a  loss  to 
conceive  why  Mr.  Stan  ton  should  harbor  such 
motiveless  malignity  against  the  reputation  of  his 
former  colleague,  then  his  pliant  subordinate,  and 
always  his  friend.  We  need,  in  this  regard,  an 
explanation  of  the  explanation.  If  it  be  true,  it 
settles  the  character  of  Stanton  for  all  time. 

But,  it  appears,  in  the  words  of  General  Holt, 
that  "  while  he  (Stanton)  lived,  this  enforced  silence 
was  scrupulously  obeyed."  Again  we  ask  why  ? 

Why  should  Bingham  have  obeyed  the  "  advice," 
even  if  given  by  Stanton  so  long  before?  Why 
should  the  associate  of  Holt,  in  the  prosecution  and 
execution  of  Mrs.  Surratt,  have  ministered  to  the 
malignity  of  Stantou,  scrupulously  obeyed  his  base 
injunction,  and  never  even  told  his  beloved  fellow- 
laborer  on  the  field  of  courts-martial,  that  he  pos 
sessed  such  secret  sacred  testimonials  in  his  favor  ? 

The  General  gives  us  no  explanation  of  this  "  in 
explicable  conduct." 

Surely,  the  undaunted  Bingham — who,  as  manager 
on  the  impeachment  trial,  so  clawed  the  character  of 
the  arraigned  President,  could  have  had  no  "fear  of 
the  resentment  of  Andrew  Johnson."  And,  unless 
the  masterful  Stanton  held  some  secret  back  to 
feather  his  "advice,"  or  lend  weight  to  his  injunc 
tion  of  silence,  we  see  no  reason  why  the  fear  of 
Stanton  should  have  closed  the  lips  of  the  voluble 
Special  Judge- Advocate.  He  surely  could  not  have 


HER   VINDICATION.  227 

joined  in  the  fine  irony  of  the  Secretary,  that  it 
would  be  better  for  their  mutual  friend,  although 
"  under  fire,"  "  to  rely  on  the  judgment  of  the 
people." 

But  another,  and  a  final,  explanation  is  necessary. 
The  Great  War  Minister  died  in  December,  1869. 
Holt  more  than  hints  that  "  Providence  "  shortened 
his  life  so  that  he  should  no  longer  "  perpetrate  so 
pitiless  an  outrage"  as  keeping  Bingham' s  mouth 
shut. 

Why,  then,  do  we  hear  nothing  from  Judge  Bing- 
ham  for  three  years  more  ?  In  the  words  of  Holt, 
"  after  the  Secretary  had,  amid  the  world's  funeral 
pomp,  gone  down  into  his  sepulchre,  the  truth  came 
up  out  of  the  grave  to  which  he  had  consigned  it," 
and  was  "  resurrected  and  openly  announced  by 
Judge  Bingham."  But  why  was  the  resurrection 
delayed  until  February,  1873?  He  does  not  tell 
us.  Why  should  "  the  buzz  of  this  slanderous 
rumor  "  (to  use  Holt's  own  words),  "  sadly  recall  to 
him  that,  though  holding  that  proof,  he  was  not  yet 
privileged  to  divulge  it  ?  "  There  is  no  answer  to 
this  ;  none.  The  "  scrupulosity  "  of  Bingham  did 
not  end  with  the  providential  taking  off  of  Stanton, 
but  prolonged  its  reverential  obedience  to  the  advice 
of  the  dead,  until  his  great  colleague  also  was  sum 
moned  from  the  scene. 

Such  resurrected  truth,  like  the  suggested  letter  of 
Speed  to  be  used  only  after  poor  Holt's  death, 
seems  doubly  obnoxious  to  the  latter's  own  common 


228  MARY   E.   STJRRATT. 

sense  remark :  "  thus  strangely  withheld  from  the 
public,  it  would  not,  when  it  appeared,  be  credited." 

On  the  whole,  it  is  exceedingly  doubtful  whether 
Judge  Bingham's  testimony  does  not  do  more  harm 
than  good  to  General  Holt's  case.  It  is  the  testi 
mony  of  an  accomplice,  if  the  charge  it  is  meant  to 
refute  is  true.  Its  subject-matter  is  hearsay,  with 
held,  so  long  as  the  direct  evidence  was  attainable, 
for  no  good  reason,  or  for  a  reason  assigned  which 
will  not  stand  a  moment's  examination. 

This  interchange  of  letters  between  two  associates 
in  infamy,  if  infamy  there  were,  the  one  applying 
for,  and  the  other  disclosing  ostensibly  for  the  first 
time,  at  so  late  a  day,  decisive  information,  which,  in 
the  ordinary  course  of  things,  the  one  must  have 
asked  for  or  the  other  revealed,  and  both  talked  over 
from  the  beginning,  wears  upon  the  face  all  the  fea 
tures  of  a  collusive  correspondence. 

No  one  acquainted  with  the  facts  can  be  induced 
to  credit  what  both  these  men  state  upon  the  thres 
hold  of  their  correspondence,  and  upon  the  truth  of 
which  their  credibility  is  staked  for  all  time,  that,  if 
two  such  conversations  with  Judge  Bingham  actually 
took  place,  this  co- victim  of  a  common  charge  would 
ever  have  withheld  all  knowledge  of  such  important 
testimony  from  his  brother  in  affliction  for  eight 
years,  and  until  the  lips  of  his  two  eminent  inter 
locutors,  whose  confirmation  would  have  at  once  and 
for  ever  crushed  the  calumny,  were  closed  in  death. 


HER   VINDICATION.  229 

And,  with  this  incontrovertible  assertion,  we  dis 
miss  John  A.  Bingham  to  keep  company  with 
Richard  Montgomery  and  San  ford  Conover,  two 
witnesses  who  were  once  the  subjects  of  his  own 
fervid  eulogy. 

Another  aspect  of  the  case  must  for  a  moment 
detain  us. 

Under  the  admitted  fact  that  the  President 
approved  the  death-sentence  on  Wednesday,  July 
5th,  it  is  by  no  means  clear  how  we  are  to  find  room 
for  this  supposed  Cabinet  meeting. 

The  natural  construction  of  Bingharn's  letter  would 
lead  us  to  believe  that  the  Cabinet  meeting,  which 
the  two  Secretaries  are  said  to  have  described,  was  a 
regular  consultation  between  "  the  President  and  his 
advisers/7  held  before  the  "  confidential  interview  " 
at  which  the  President  "approved  the  death-sent 
ence;"  and  that  the  entire  Cabinet  voted  on  the 
question  raised  by  the  petition,  because  it  was  "  a 
unit  in  denying  the  prayer.7'  This  is  but  another 
version  of  the  "  full  Cabinet "  of  Judge  Pierrepont's 
first  statement,  and  forcibly  suggests  that  the  two 
have  an  identical  origin — at  first  withdrawn  under 
compulsion  while  Seward  lived,  at  last  brought  for 
ward  again  after  his  death. 

And  every  one,  on  such  construction,  would  expect 
to  hear  the  voices  of  McCulloch,  Welles  and  Den- 
nison,  still  living  in  1873,  and  accessible  to  the 
ex- J  udge- Ad  vocate . 


230  MARY   E.    SURRATT. 

Ho  states  in  his  "  Refutation/'  that  he  "  had 
satisfactory  reasons  for  believing  that  they  were  not 
there ; "  but  he  could  not  have  gathered  those  rea 
sons  from  Judge  Bingham  or  his  letter,  which  really 
is  only  consistent  with  the  presence  of  some,  if  not 
all,  of  the  three ;  and  it  is  naturally  to  be  inferred 
he  got  them  from  the  ex-members  themselves  in 
letters  repudiating  all  knowledge  of  the  petition  ; — 
letters  he  takes  care  not  to  publish. 

Again  :  the  Cabinet  meeting  described  in  Judge 
Bingham's  letter  cannot  be  made  to  square  with  the 
meeting  described  in  the  letter  of  Judge  Harlan. 
The  former  was  a  regular  Cabinet  meeting,  the  latter 
was  an  informal  discussion  by  a  few  members  of  the 
Cabinet.  At  the  one,  the  petition  was  "  duly  con 
sidered,"  at  the  other,  neither  record  nor  petition 
was  present.  At  the  one,  "  a  formal  vote "  was 
taken  upon  the  "  question  as  to  Mrs.  Surratt's  case ;  " 
at  the  latter,  her  case  u  was  never  submitted  to  a 
formal  vote." 

But — not  to  dwell  further  on  dispensable  points 
— it  is  enough  to  say  that  any  Cabinet  meeting 
whatever,  for  the  consideration  of  the  petition,  held 
before  the  President's  approval  of  the  death-sentence, 
is,  on  the  admitted  facts  of  the  case,  an  impossibility. 

Indeed  Holt  himself,  when  driven  to  the  question, 
does  not  claim  that  there  was.  The  record  was  in 
the  custody  of  the  Judge-Advocate  from  the  30th  of 
June  until  that  officer  carried  it  to  the  President 
on  the  5th  of  July,  and  during  that  interval  the 


HER  VINDICATION.  231 

President  was  sick-a-bed.  It  was  General  Holt,  as 
he  himself  states,  who  first  "  drew  his  attention  to  the 
recommendation/7  and  "  the  President  then  and 
there  read  it  in  my  (his)  presence."  And  this  was 
at  the  confidential  interview  on  Wednesday,  July 
5th.  There  could  have  been  no  ^  meeting  of  the 
President  and  his  Cabinet  at  which  the  record  and 
petition  were  present  and  discussed,  "  before  the 
approval  of  the  death-sentence ;  "  which  confessedly 
was  done  at  the  confidential  interview. 

When  this  impossibility  was  pointed  out  by 
Andrew  Johnson,  General  Holt,  in  his  "  refutation," 
with  great  show  of  indignation,  denounces  such  an 
argument  as  "  intensely  disingenuous."  While  con 
ceding  at  once  that  from  the  adjournment  of  the 
Commission  to  the  5th  of  July,  the  President  "  had 
been  sick  in  bed,  and  had,  of  course,  had  no  oppor 
tunity  of  conferring  with  any  members  of  his  Cabi 
net  ; "  he  proceeds  to  show  what  his  idea  of  intense 
ingenuousness  is,  by  claiming  that  what  "Messrs. 
Seward  and  Stan  ton  "  (of  Bingham's  letter)  "  clearly 
meant  was,  that  before  the  President  had  finally  and 
definitely  approved  the  sentences  in  question,"  the 
recommendation  to  mercy  "  had  been  considered  by 
him  and  his  advisers  in  Cabinet  meeting  • "  and 
therefore  such  a  meeting  might  have  been  held  after 
the  signature  to  the  death-warrant,  say  on  Wednes 
day  afternoon  (5th),  or  on  Thursday,  the  6th.  And 
he,  now,  once  again,  as  in  the  days  of  the  Surratt 
trial,  abandons  all  idea  of  a  "  full  "  or  regular  Cabi- 


232  MARY    E.   SURRATT. 

net  meeting,  and  endeavors,  with  the  most  transparent 
sophistry,  to  identify  the  informal  discussion  of 
Judge  Harlan's  letter  with  the  Cabinet  Council  of 
Judge  Bingham.  But  alas  !  for  the  ingenuous  Gen 
eral  !  Circumstances  are  too  strong  for  him.  For 
there  is  no  more  room  for  a  Cabinet  meeting,  formal 
or  informal,  to  do  what  Judge  Bingham's  informants 
are  said  to  relate — i.  e.  consider,  and  then  vote  upon 
the  petition — after  the  confidential  interview  than 
before. 

It  is  agreed  on  all  hands  that  the  President 
approved  of  the  death-sentence  on  Wednesday,  at 
the  confidential  interview  between  Holt  and  himself, 
and,  at  that  very  time,  and  by  the  same  warrant, 
appointed  Friday  the  7th,  for  the  executions.  The 
whole  matter  was  begun  and  ended  in  an  hour. 

There  was  neither  opportunity,  nor,  if  there  had 
been,  use,  to  hold  a  Cabinet  consultation  upon  the 
question  of  commutation  after  that. 

The  President  had  reviewed  the  record,  and,  with 
out  consultation  with  any  human  being  but  Holt, 
put  his  name  to  the  death-warrant.  Why  consult 
his  confidential  advisers  after  he  had  decided  the 
whole  matter?  Holt  himself  says  that,  at  this 
private  interview,  it  was  not  he,  but  Andrew  John 
son,  who  had  fully  made  up  his  mind  that  Mrs. 
Surratt  must  be  put  to  death ;  that  the  President 
needed  no  urging  or  advice  on  that  subject ;  that  he 
inveighed  against  the  women  of  the  South  with  a 
ferocity  which  reminds  us  of  the  loyal  Bingham 


HER    VINDICATION.  233 

himself.  Holt  says  that  the  President  himself,  with 
out  a  suggestion  from  him,  was  "  prompt  and 
decided "  u  as  to  token  the  execution  should  take 
place,"  "and  in  the  same  spirit  too,  in  which  he 
subsequently  suspended  the  writ  of  Habeas  Corpus, 
he  fixed  the  Friday  following."  Why  call  in  his 
"  advisers "  after  he  had,  with  the  approval  of  his 
judgment  and  his  conscience,  put  his  hand  to  the 
work  of  blood  !  Besides,  if  he  needed  such  a  super 
erogatory  endorsement  of  his  "  advisers,"  there  was 
no  time  to  get  it. 

The  record  with  the  death-warrant  went  direct  to 
the  Adjutant-General's  office  that  very  Wednesday. 
Holt  cannot  remember  whether  he  took  it  or  not, 
nor  can  the  Adjutant-General  remember  when  or 
how  he  received  it.  But  this  is  of  no  consequence. 
The  order  for  the  execution  was  drawn  on  that  day, 
the  necessary  copies  made  that  day ;  it  was  promul 
gated  on  the  morning  of  Thursday  the  6th,  and  on 
that  day  at  noon,  the  warrant  for  her  death,  within 
twenty-four  hours,  was  read  to  the  fainting  woman 
in  her  cell.  All  day  long,  on  the  6th,  the  White 
House  was  besieged  by  her  friends,  her  priests  and 
her  daughter,  to  obtain  a  reprieve.  The  guardians 
of  the  President  had  no  time  to  hold  Cabinet  con 
sultations  over  foregone  dooms  of  death.  They  were 
too  busy  intercepting  verbal  prayers  for  mercy,  hold 
ing  shut  the  doors  of  the  President's  private  room, 
sending  away  all  petitioners,  for  a  few  more  hours' 
life,  to  the  merciful  Judge- Advocate,  making  sure 


234  MARY    E.   StTRRATT. 

that  there  should  be  four  pine  coffins  and  four  newly 
dug  graves,  and  that  the  Habeas  Corpus  should  not 
leave  one  empty.  Hold  a  Cabinet  meeting  after  the 
President  had  signed  the  bloody  warrant,  and  Stan- 
ton  had  once  clutched  it !  Reopen  the  perilous 
question  to  hear  Welles  and  Dennison,  and  McCul- 
loch  and  Seward,  to  say  nothing  of  Harlan  and 
Speed  and  Stanton,  discuss  a  petition  addressed  to 
the  President  who  had  already  denied  it !  "  Five 
members  of  our  court  have  been  suborned  by  their 
feelings  to  swerve  from  their  duty.  We  run  no 
more  risks  of  soft-hearted  gallantry  this  time  amid 
the  members  of  the  Cabinet.  Let  the  funeral  games 
begin." 

The  ex- Judge- Advocate  insists  that  the  signature 
to  the  death-warrant  was  a  matter  of  very  little 
moment.  The  President  could  withdraw  it  at  any 
time.  But  would  he  have  us  believe  that,  after  the 
President  had  dispatched  such  a  fatal  missive  to  the 
officer  whose  sole  duty,  with  regard  to  it,  consisted 
in  the  promulgation  of  an  order  for  its  execution 
within  twenty-four  hours,  such  action  was  simply 
provisional  and,  according  to  usage,  still  subject  to 
rescission  by  a  Cabinet  vote  ? 

Desperate,  indeed,  must  be  the  necessities  of  a 
defence,  which  drive  the  defendant  on  the  forlorn 
hope  of  identifying  a  Cabinet  meeting,  voting  as  a 
unit  to  deny  a  petition  for  clemency,  "before  the 
death-warrant  ivas  approved"  with  a  Cabinet  discus 
sion  of  the  petition,  after  the  death-warrant,  fixing 
the  execution  on  the  next  day  but  one,  had  been 


HEE   VINDICATION.  235 

signed  by  the  President,  (who  is  represented  as 
urgent  and  eager  at  the  moment  of  his  signature  to 
exact  in  the  shortest  time  the  extremest  penalty); 
on  the  ground  that  the  latter  was  held  before  the 
theoretical  animus  revocandi  of  the  Executive  had 
become  technically  inoperative  with  the  last  sigh  of 
the  condemned. 

It  has  been  suggested  by  one  of  his  subordinate 
officers  that  the  Secretary  of  War  having  seen  the 
petition  as  soon  as  the  record  came  to  his  department, 
it  is  inconceivable  that,  at  some  moment  between  the 
30th  and  the  7th,  the  matter  should  not  have  been 
discussed  by  him  with  the  President. 

Of  course,  there  can  be  no  doubt  that  Stanton 
knew  all  about  the  recommendation.  But,  (and  this 
obvious  answer  seems  to  have  altogether  escaped  the 
attention  of  his  friend),  if  the  paper  was  in  fact 
suppressed,  it  was  suppressed  with  Stanton's  own 
knowledge.  Indeed,  his  must  have  been  the  master- 
hand.  He  it  was  who  kept  the  late  Vice- President 
up  to  the  mark  of  severity  as  long  as  the  bloody 
humor  lasted. 

He  was  the  sovereign,  and  Bingham  and  Holt 
but  his  vassals.  Everybody  will  give  them  the 
credit  of  not  having  dared  to  dream  of  suppression 
without  the  electrifying  nod  of  their  imperious  lord. 

And,  from  the  long  silence  of  one,  if  not  both,  of 
his  slaves,  it  would  appear,  that  he  not  only  directed 
the  suppression  of  the  paper,  but  was  too  proud  to 
deny,  or  suffer  his  minions  to  deny,  it  to  his  dying  day. 


CHAPTER  V. 

ANDREW  JOHNSON  SIGNS  ANOTHER 
DEATH-WARRANT. 

LET  us  turn  from  the  case  made  by  General  Holt, 
which  on  a  cursory  inspection  seems  so  strong, 
but  the  seeming  strength  of  which,  on  a  closer 
scrutiny,  dissipates  itself  among  such  perplexing 
questions,  and  lands  us  at  last  in  the  "enjoined 
silence  "  of  Stanton,  to  the  first  public,  authoritative 
charge  made  by  the  ex-President. 

It  appeared,  November  12th,  1873,  in  the  same 
newspaper  which  had  published  General  Holt's  Vin 
dication,  to  which  it  was  a  reply.  For  it  must  be 
remembered  that  it  was  Joseph  Holt,  for  eight  years 
the  accused,  and  not  Andrew  Johnson,  for  eight  years 
the  accuser,  at  the  bar  of  rumor,  who  first  threw 
down  his  gage  in  the  public  arena,  defying  his  secret 
antagonist  to  come  forth. 

The  gallant  knight  chose  his  own  good  time; 
and,  at  last,  surrounded  with  sponsors,  both  clerical 
and  martial,  with  banners  flying  and  a  most  sonorous 
peal  of  trumpets,  he  burst  into  the  lists,  as  though 
he  would  fain  hope  by  noise  and  show  to  over-awe 
his  dreaded  adversary  into  submissive  silence. 
236 


HER   VINDICATION.  237 

His  thunders  availed  nothing.  His  glove  had  no 
sooner  reached  the  ground  than  it  was  taken  up. 

Let  us  hear  the  plain,  straightforward  statement 
of  Andrew  Johnson.  There  are  no  mysteries  to 
unravel,  no  explanations  to  explain. 

"  The  findings  and  sentences  of  the  court  were  submitted  on 
the  5th  of  July  (he  and  I  being  alone),  were  then  and  there 
approved  by  the  Executive,  and  taken  by  the  Judge- Advocate- 
General  to  the  War  Department,  where  on  the  same  afternoon 
the  order  to  carry  them  into  effect  was  issued.  Mr.  Speed, 
doubtless,  saw  the  record,  but  it  must  have  been  in  the  Depart 
ment  of  War,  and  not  in  the  Executive  office." 

After  thus  quietly  disposing  of  Mr.  Speed's  evi 
dence,  he  proceeds  : — 

"The  record  of  the  court  was  submitted  to  me  by  Judge 
Holt  in  the  afternoon  of  the  5th  day  of  July,  1865.  Instead  of 
entering  the  Executive  Mansion  in  the  usual  way,  he  gained 
admission  by  the  private  or  family  entrance  to  the  Executive 
office.  The  examination  of  the  papers  took  place  in  the  library, 
and  he  and  I  alone  were  present.  The  sentences  of  the  court 
in  the  cases  of  Herold,  Atzerodt  and  Payne,  were  considered 
in  the  order  named,  and  then  the  sentence  in  the  case  of  Mrs. 
Surratt.  In  acting  upon  her  case  no  recommendation  for  a  com 
mutation  of  her  punishment  was  mentioned  or  submitted  to  me." 

He  then  states  that  the  question  of  sex  was  dis 
cussed  alone ;  Holt  insisting  upon  carrying  out  the 
sentence  without  discriminating  as  to  sex ;  that  a 
woman  unsexed  was  worse  than  a  man ;  that  too 
many  females  had  abetted  traitors  during  the  war, 
and  that  there  was  a  necessity  an  example  should  be 
made. 


238  MARY   E.   6URRATT. 

"  He  was  not  only  in  favor  of  the  approval  of  the  sentence 
but  its  execution  on  the  earliest  practicable  day. 

"  Upon  the  termination  of  our  consultation,  Judge  Holt 
wrote  the  order  approving  the  sentences  of  the  Court.  I 
affixed  niy  name  to  it,  and,  rolling  up  the  papers,  he  took  his 
leave,  carrying  the  record  with  him,  and  departing  as  he  had 
come  through  the  family  or  private  entrance." 

And  there  we  must  leave  him. 

True,  he  rejoined,  in  December,  in  another  very 
long  article,  contributed  to  the  same  newspaper,  in 
which  he  endeavored  to  break  the  force  of  several 
points  made  in  Johnson's  answer,  and  dwelt  with 
much  insistence  on  the  abstention  of  the  President 
from  making  any  open  charge  against  him,  and  on 
his  adversary's  present  silence  with  regard  to  General 
Mussey's  letter.  But  there  is  nothing  new  in  the 
way  of  testimony,  except  two  sympathizing  letters 
from  Generals  Ekin  and  Hunter,  respectively ;  the 
former  of  which  might  be  construed  by  the  uncharit 
able  as  evidence  that  General  Holt,  at  the  time  of 
the  execution,  was  already  forestalling  anticipated 
accusation  by  defending  himself  in  private  to  his 
friends ;  the  latter  is  a  tribute  from  the  grim  Presi 
dent  of  the  Military  Commission  to  the  Judge- 
Ad  vocate's  tenderness  to  the  prisoners  before  that 
body,  of  which  the  printed  record  of  the  trial 
affords  such  striking  illustrations. 

This  lengthy  "  Refutation/'  as  it  was  entitled, 
upon  the  whole  added  little,  if  any,  strength  to  the 
"  Vindication."  His  accuser,  on  his  side,  resting 


HER   VINDICATION.  239 

content  with  his  one  single  explicit  public  utter 
ance,  paid  no  attention  to  it. 

And  when,  at  the  present  hour,  we  calmly  survey 
the  relative  standing,  the  position,  the  character  and 
career  of  the  two  combatants,  the  circumstances 
surrounding  the  momentous  confidential  interview, 
the  silent  testimony  of  the  record  with  the  signifi 
cant  twist  of  the  death-warrant,  the  nature  of  the 
accusation,  the  mysteries  enveloping  the  belated 
defense,  the  probable  motives  actuating  each,  the 
thirst  for  blood  which  for  a  time  maddened  the 
leading  spirits  of  the  War  Department,  the  passivity 
of  Johnson  for  the  few  weeks  after  his  sudden  and 
sombre  inauguration,  and  for  the  same  period  the 
wild  and  reckless  predominance  of  Stanton ; — what 
valid  reason  exists  why  we  should  discredit,  or  even 
suspect  for  a  moment,  the  veracity  of  the  ex-Presi 
dent?  Andrew  Johnson  looms  up  in  history  a  very 
different  figure  from  the  one  discerned  by  his  ene 
mies,  both  North  and  South,  amid  the  passions  of 
his  epoch.  He  was  no  inebriate,  as  he  was  stig 
matized  because  of  the  unfortunate  incident  at  his 
inauguration  as  Vice-President*  He  was  no  weak, 
frightened  tool,  as  he  appeared  to  be  at  the  bloody 
crisis  of  his  accession  to  the  Presidency.  He  was 
no  apostate  from  his  section,  as  he  was  cursed  by 
the  South  for  being  at  the  breaking  out  of  the  war. 
He  was  no  traitor  to  the  North,  as  he  was  denounced 
by  the  impeachers  for  the  mere  endeavor  to  carry 
out  the  reconstruction  policy  of  his  lamented  prede- 


240  MARY   E.    SURRATT. 

cessor.  He  was  not  the  garrulous  fool,  he  was 
called  in  ridicule  when  he  "  swung  around  the 
circle."  He  is  now  recognized,  when  his  career  is 
reviewed  as  a  whole,  as  a  man  temperate  in  his 
habits,  firm,  self-willed  and  honest ;  as  a  statesman, 
intelligent  though  uncultured,  sometimes  profound 
and  always  sincere;  and  as  a  union-loving,  non- 
sectional,  earnest  patriot.  His  impeachment  is 
looked  back  upon  by  the  whole  country  with  shame. 
His  impeachers  are  already,  themselves,  both  im 
peached  and  convicted  at  the  bar  of  history. 

In  sober  truth,  so  unique  and  perfect  a  triumph 
never  capped  and  completed  the  career  of  Koman 
warrior  or  modern  ruler  of  men,  as  when,  but  little 
more  than  a  year  after  his  reply  to  General  Holt, 
the  ex-President — once  again  the  chosen  representa 
tive  of  that  State  whose  rebellious  people  he  had 
coerced  with  an  iron  hand  as  military  governor  dur 
ing  the  Civil  War — took  his  seat  in  that  body, 
before  which  he  had  been  arraigned  on  the  impeach 
ment  of  the  House  of  Representatives  and  had 
escaped  conviction  by  but  a  single  vote. 

With  the  words  of  Holt's  denunciation  still  fresh 
in  their  remembrance,  the  citizens  of  Washington 
loaded  the  desk  of  the  retributive  Senator  with 
flowers;  and,  when  he  advanced,  amidst  so  many 
colleagues  who  had  condemned  him  as  judges,  to 
take  the  oath  of  office,  and  again  when,  a  few  days 
later,  his  voice,  which  had  before  been  heard  plead 
ing  for  the  imperiled  Union,  was  from  the  same 


HER   VINDICATION.  241 

place  once  more  heard  pleading  for  the  imperiled 
Constitution,  the  crowded  galleries  and  corridors 
gave  him  a  conquering  hero's  welcome. 

When  in  the  following  summer  he  died,  his  body 
was  followed  to  its  grave  in  the  mountains  by  what 
it  is  hardly  an  exaggeration  to  call  the  whole  people 
of  his  State.  When  Congress  reassembled,  the 
Senate  and  the  House  clothed  themselves  with 
crape.  One  of  his  former  judges,  who  had  voted 
him  guilty  of  high  crimes  and  misdemeanors 
(Morton,  of  Indiana),  thus  spoke  of  him  in  the 
Senate  : 

"  In  every  position  in  life  he  showed  himself  to 
be  a  man  of  ability  and  courage,  and  I  believe  it 
proper  to  say  of  Andrew  Johnson  that  his  honesty 
has  never  been  suspected  ;  that  the  smell  of  corrup 
tion  was  never  upon  his  garments/' 

The  same  Senator  related  that  when  Johnson,  as 
the  newly  appointed  Military  Governor,  arrived  at 
Nashville  u  he  was  threatened  with  assassination  on 
the  streets  and  in  the  public  assemblies,  but  he  went 
on  the  streets ;  he  defied  those  dangers  ;  he  went 
into  public  assemblies,  and  on  one  occasion  went 
into  a  public  meeting,  drew  his  pistol,  laid  it  on  the 
desk  before  him,  and  said  :  '  I  have  been  told  that 
I  should  be  assassinated  if  I  came  here.  If  that  is 
to  be  done  then  it  is  the  first  business  in  order,  and 
let  that  be  attended  to.'  No  attempt  having  been 
made  he  said  :  '  I  conclude  the  danger  has  passed 
by;'  and  then  proceeded  to  make  his  speech." 
16 


242  MARY    E.    SURRATT. 

Again  the  Senator  said  :  "  After  I  had  voted  for 
his  impeachment,  and  met  him  accidentally,  he 
wore  the  same  kindly  smile  as  before,  and  offered 
me  his  hand.  I  thought  that  showed  nobility  of 
soul.  There  were  not  many  men  who  could  have 
done  that." 

The  man,  of  whom  two  such  incidents  could  be 
truthfully  related,  could  never  have  invented  so  foul 
a  charge  against  an  innocent  subordinate. 

A  Senator  from  a  neighboring  State,  (McCreery), 
on  the  same  mournful  occasion  said  of  him  : 

"When  he  went  to  Greeneville  he  was  a  stranger,  and  a 
tailor's  "kit,"  his  thimbles  and  his  needles,  were  probably  the 
sum-total  of  his  earthly  possessions  ;  at  his  death,  the  hills  and 
the  valleys  and  the  mountains  and  the  rivers,  sent  forth  their 
thousands  to  testify  to  the  general  grief  at  the  irreparable  loss. 

"I  honor  him  for  that  manly  courage  which  sustained  him 
on  every  occasion,  and  which  never  quailed  in  presence  of 
opposition,  no  matter  how  imposing.  I  honor  him  for  that 
independence  of  soul  which  had  no  scorn  for  the  lowly,  and  no 
cringing  adulation  for  the  exalted.  I  honor  him  for  that 
sterling  integrity  which  was  beyond  the  reach  of  temptation, 
and  which,  at  the  close  of  his  public  service,  left  no  blot,  no 
stain  upon  his  escutcheon.  I  honor  him  for  that  magnanimity 
which  after  the  war  cloud  had  passed,  and  the  elements  had 
settled,  would  have  brought  every  citizen  under  the  radiant 
arch  of  the  bow  of  peace  and  pardon." 

Another  Senator  (Paddock,  of  Nebraska)  gave 
utterance  to  the  following  unchallenged  statement : 

"  I  believe,  sir,  notwithstanding  the  fact  that  a  painful  chap 
ter  relating  to  the  official  acts  of  Andrew  Johnson  was  made  in 
this  very  chamber,  that  no  Senator  here  present  will  refuse 


HER  VINDICATION.  243 

to-day  to  join  me  in  the  declaration  that  he  was  essentially  an 
honest  man  ;  aye,  sir,  a  patriot  in  the  fullest  sense  of  the  term." 

Yet  another  (Bogy,  of  Missouri),  said : 

"His  last  election  to  a  seat  on  this  floor  as  Senator  was  the 
work  of  his  own  hands,  brought  about  by  his  own  indomitable 
will  and  pluck,  the  reward  of  a  long  and  terrible  contest,  cpn- 
tinuing  for  seven  years,  unsuccessful  for  a  time,  and  appearing 
to  all  the  world  besides  himself  as  utterly  hopeless ;  neverthe 
less,  finally  he  was  triumphant.  From  what  I  have  learned 
from  those  who  are  familiar  with  this,  his  last  contest,  he 
exhibited  more  openly  his  true  and  peculiar  nature,  than  at 
any  other  period  of  his  life — which  was  to  fight  with  all  his 
might  and  all  his  ability,  asking  no  quarter  and  granting  none  ; 
and  although  like  bloody  Richard  now  and  then  unhorsed,  still 
to  fight  and  never  surrender,  until  victory  perched  upon  his 
banner." 

Senator  Bayard  said  :  "Friend  or  foe  alike  must 
admit  his  steady,  unshaken  love  of  country ;  his 
constant  industry  ;  his  simple  integrity  and  honesty  ; 
his  courage  of  conviction,  that  never  faltered/' 

Truly,  the  solemn  word  of  a  man,  of  whom  such 
things  can  be  said,  is  no  light  thing, — to  be  thrust 
aside  by  windy  abuse  or  vociferous  denial. 

Now,  what  conceivable  motive  had  such  a  man, 
seated  in  the  chair  of  the  Chief  Magistracy  of  this 
republic,  surrounded  by  Cabinet  officers  who  had 
been  the  advisers  of  his  predecessor,  to  invent,  in 
the  first  place,  so  horrible  a  story  as  that  a  friendly 
subordinate  officer  had  deliberately,  in  a  case  of  life 
and  death,  suppressed  so  vital  a  document?  For  it 


244  MARY   E.   STJRRATT. 

is  contradictory  of  historical  fact,  that  he  never 
openly  made  the  charge  until  the  year  1873. 

This  may  be  true  of  the  period  from  about  the 
time  of  the  execution  up  to  the  disclosures  of  the 
John  H.  Surratt  trial  in  1867.  But  our  review  of 
the  incidents  of  that  trial,  which  General  Holt  in 
his*  refutation  seemed  to  have  totally  forgotten, 
proves,  beyond  the  possibility  of  controversy,  that 
the  President  then  first  thought  himself  driven  to 
inspect  the  record  to  ascertain  the  existence  of  such 
a  paper,  and  then  first,  after  the  discovery  that  there 
was  in  fact  a  recommendation,  at  once,  and  at  all 
times  afterwards,  openly  asserted  that  he  had  not 
seen  it  or  read  it.  Every  one  around  him  knew 
that  he  so  said.  Stan  ton,  his  great  enemy,  Seward, 
his  great  friend,  knew  it.  Bingham,  at  the  very 
beginning  when  Stanton  forbade  him  to  refute  it; 
Bingham,  when  Butler  pierced  his  shield  in  the 
House  of  Representatives,  and  Bingham,  when  at 
the  bar  of  the  Senate  as  manager  of  the  impeach 
ment  he  belabored  his  old-time  Com  mander-in-Chief, 
knew  it;  Holt,  when  he  delivered  his  contradiction 
through  Judge  Pierrepont  to  the  Surratt  jury,  and 
when  lie  felt  the  shadows  darkening  over  his  head 
because  of  the  "  inexplicable  conduct "  of  the  great 
War  Minister  in  "perpetuating  the  pitiless  out 
rage/'  knew  it,  and  recognized  the  President  of  the 
United  States  as  the  responsible  author  of  the  tre 
mendous  accusation. 

If  Holt  is  to  be  credited,  the  President  must 
have  known  that  four  at  least  of  his  confidential 


HER   VINDICATION.  245 

advisers  stood  ready  to  shatter  the  baseless  calumny. 
What  conceivable  motive,  we  ask  again,  to  invent 
such  a  story — so  easy  of  refutation,  so  ruinous  to 
himself,  if  refuted  ? 

The  necessity  to  make  some  reply  to  this  pressing 
question  seems  to  have  driven  both  General  Holt 
himself  and  his  defenders  into  the  maintenance  of 
the  most  absurd,  antagonistic  and  untenable  positions. 

Holt's  theory  on  this  subject  in  his  "  Refutation  " 
is  even  ingenious  in  its  absurdity.  He  would  have 
us  believe  that  when  Johnson  originally  fabricated 
the  calumny,  "  he  had  not  yet  broken  with  the 
Republican  party,  and  was,  doubtless,  in  his  heart 
at  least,  a  candidate  for  reelection/'  of  course  by 
that  party.  If  this  is  true,  then  the  "  fabrication  " 
was  made  before  the  fall  of  1865,  for  by  that  time 
the  President  was  in  full  swing  of  opposition  to  the 
men  who  had  elected  him  Yice-President.  During 
this  brief  transitory  period,  according  to  Holt, 
Johnson  discovered  that  the  hostility  of  the  Catholics 
(especially,  as  may  be  inferred,  those  of  the  Repub 
lican  party),  on  account  of  his  signature  to  the 
death-warrant  of  Mrs.  Surratt,  would  blast  this 
otherwise  felicitous  prospect.  Accordingly,  to  abate 
this  uncomfortable  hostility,  this.  Republican  candi 
date  concocted  the  vile  slander  and  set  it  secretly 
and  anonymously  circulating  among  his  friends  and 
followers ; — even  his  greed  for  reelection  being  not 
strong  enough  to  give  full  effect  to  his  cowardly 
policy  by  openly  clearing  his  own  skirts.  Could 


246 


MARY   E.    SURRATT. 


the  fatuity  of  folly  farther  go?  The  dream  of 
Andrew  Johnson  as  a  Republican  candidate  for 
President  had  ceased  to  be  possible  even  before  the 
execution  of  Mrs.  Surratt.  The  Catholics  who 
could  be  conciliated  by  any  such  story  might  be 
numbered  on  Johnson's  fingers.  And  the  undis 
guised  signature  to  the  death-warrant  could  be 
obliterated  by  no  plea  of  abatement  which  the  peti 
tioner  dared  not  avow. 

On  the  other  hand,  the  other  suggestion  put  for 
ward,  if  not  by  Holt  himself,  by  several  of  his 
defenders,  viz.:  that  the  President  propagated  the 
lie  "  to  curry  favor  with  the  South  in  the  hope  to 
be  elected  to  the  Presidency,"  has  the  one  merit  of 
being  in  direct  antagonism  to  the  foregoing  theory, 
but  nevertheless  is  yet  more  flimsy  and  preposterous. 
At  the  time  he  invented  the  story,  if  invention  it 
was,  (as  Holt  appears  to  have  perceived),  the  road  to 
the  Presidency  was  to  curry  favor  with  the  North 
and  not  with  the  down-trodden  South.  And  after 
Johnson  had  escaped  conviction  and  removal  by  but 
one  vote,  and  had  retired  froui  office  execrated  by 
the  North  and  distrusted  even  yet  by  the  South,  the 
chance  of  the  Presidency  for  such  a  character  as  he 
was  popularly  considered  then — especially  by  truck 
ling  to  the  discredited  South — could  only  look  fair 
in  the  imagination  of  a  lunatic. 

No  Southern  man  has  seriously  thought  of  being, 
or  has  been  seriously  thought  of  as,  a  candidate  for 
President  of  either  political  party  since  the  termi- 


HER   VINDICATION.  247 

nation  of  the  war,  let  alone  the  one  Southerner 
reputed  to  have  been  false  alternately  to  both  parties 
and  both  sections. 

Besides,  Andrew  Johnson  never  apologized  for 
his  appointment  of  the  Military  Commission,  for 
his  approval  of  its  judgment,  or  for  his  signature  to 
the  death-warrant.  He  pardoned  Dr.  Mudd  on  the 
very  eve  of  the  Impeachment  Trial.  And  he  par 
doned  the  two  remaining  prisoners  just  before  he 
went  out  of  office.  And  he  may,  therefore,  be  held 
to  have  thus  signified  his  reawakened  reverence  for 
constitutional  rights  as  expounded  in  the  Milligan 
decision. 

But  in  no  other  way  did  he  ever  acknowledge 
that  in  taking  the  life  of  Mary  E.  Surratt  he  had. 
done  wrong.  On  the  contrary,  he  defended  his 
action  in  his  answer  of  1873,  and  he  justified  his 
denial  of  the  habeas  corpus,  which  the  ex- Judge- 
Advocate  had  the  exquisite  affrontery  to  cast  up 
against  him.  That  a  President  in  his  situation 
could  cherish  aspirations — or  hope — of  reelection, 
based  on  such  a  phantom  foundation  as  the  whining 
plea  that  he  would  have  commuted  the  unlawful 
sentence  of  a  woman,  hung  by  his  command,  to 
imprisonment  for  life,  had  he  been  permitted  to  see 
the  petition  of  five  of  her  judges; — such  an  impu 
tation  can  only  be  made  by  men  mad  enough  to 
believe  him  to  have  been  the  accomplice  of  Booth 
and  Atzerodt. 


248  MARY   E.    SURRATT. 

Finally,  let  us  sternly  put  the  question  : — What 
right  has  Holt  to  ask  us,  on  the  word  of  himself 
and  his  associates,  to  reject  the  testimony  of  Andrew 
Johnson,  who  at  the  best  was  their  accomplice  or 
their  tool  ?  He,  and  his  associates,  demanded  the 
life  of  Atzerodt  for  barely  imagining  the  death  of 
so  precious  a  Vice-President.  He,  and  his  asso 
ciates,  hounded  the  woman  to  the  scaffold,  welcom 
ing  with  delight  the  stories  of  spies,  informers, 
personal  enemies,  false  friends,  against  her,  and 
meeting  with  contumely  and  violence  the  least  scrap 
of  testimony  in  her  favor.  He  suppressed  the 
"  Diary."  Why  may  he  not  have  been  bad  enough 
to  suppress  the  recommendation?  Two  of  the 
same  band  of  woman-stranglers  kept  back  from  the 
President  the  petition  for  mercy,  which  wailed  out 
from  the  lips  of  the  stricken  daughter.  Why 
should  he  not  have  kept  back  the  timorous  sugges 
tion  of  five  officers,  who  were  so  soft-hearted  as  to 
"discriminate"  as  to  sex?  His  fate  will  be — and 
therein  equal  and  exact  justice  will  be  done  him — to 
go  down  through  the  ages,  stealing  away,  in  the 
dusk  of  the  evening,  from  the  private  entrance  of 
the  White  House,  bearing  the  fatal  missive — the 
last  feeble  hope  of  the  trembling  widow  crushed  in 
his  furtive  hand. 


CHAPTER  VI. 

CONCLUSION. 

the  petition  for  commutation  was  a 
_L  device  of  the  Triumvirate  of  prosecutors  to 
secure  the  coveted  death-sentence,  employed  in  reli 
ance  upon  the  temporary  ascendency  of  the  chief  of 
the  three  over  the  beleaguered  President,  and  upon 
the  momentary  pliability,  heedlessness,  or,  it  may 
be,  semi-stupefaction  of  the  successor  of  the  mur 
dered  Lincoln,  to  smother  the  offensive  prayer: — 
such  an  hypothesis  alone  seems  adequate  in  any 
degree  to  reconcile  the  apparent  contradictions,  clear 
up  the  perplexities  and  solve  the  mysteries,  which 
hang  around  this  dark  affair. 

It  furnishes  the  only  rational  answer  to  the  else 
insoluble  question,  how  it  happened  that  a  court,  a 
majority  of  whose  members  had  the  inclination  and 
the  power  to  lower  the  punishment  of  the  solitary 
woman  before  them  to  life-long  imprisonment,  as 
the  court  did  with  the  three  men  who  were  tried 
with  her  and  convicted  of  the  same  crime,  did 
nevertheless,  by  at  least  a  two-thirds  vote,  condemn 
her  to  die  by  the  rope. 

249 


250  MARY   E.    SURE  ATT. 

It  lights  up  the  else  inscrutable  prohibition  by 
Stanton  of  a  public  exculpation  of  his  subordinate 
officer,  softened  by  the  sardonic  admonition  "to 
rely"  for  justification  "on  the  final  judgment  of  the 
people."  A  source  of  glorification,  rather,  it  should 
be,  that  no  maudlin  pity  for  a  woman  had  been  suf 
fered  to  intercept  the  death-stroke  of  a  righteous 
vengeance. 

It  accounts  for  the  "scrupulous  obedience"  of 
Bingham,  not  only  until  Stanton's  death,  but  three 
years  after,  until  Seward,  too,  had  gone.  Stanton 
knew  the  petition  had  been  suppressed  or  made 
invisible ;  Seward,  that  the  petition  never  had  been 
before  the  Cabinet. 

It  throws  a  glimmer,  faint  it  is  true,  on  the 
shameful  attitude  of  Speed,  eight  years  after  the 
death  of  Johnson — still  shutting  his  ears  to  the 
repeated  appeals  of  his  agonized  friend,  and  still 
falling  back  on  his  propriety.  According  to  Judge 
Harlan,  the  whole  record  had  been  examined  by  the 
Attorney-General,  as  well  as  the  Secretary  of  War. 
Speed,  too,  under  the  spell  of  Stanton,  may  have 
fingered  the  obnoxious  paper,  which  might  nip  the 
bloody  consummate  flower  of  his  "  common  law  of 
war" 

It  furnishes  the  only  plausible  reason  why  such 
an  historic  document  did  not  appear  in  the  published 
official  record  of  the  proceedings  of  the  Military 
Commission,  in  November,  1865,  or  in  the  reports 
of  the  Judge- Advocate,  first,  to  the  President,  arid, 
second,  to  the  Congress. 


HER   VINDICATION.  251 

It  illumines  with  a  baleful  light  the  atmosphere 
of  sinister  secrecy,  in  which  this  adjunct  to  the 
record,  for  no  lawful  reason,  has  been  enshrouded ; 
the  mysterious  incidents  at  the  Surratt  trial,  such  as 
the  tardy  and  reluctant  production,  the  faltering 
and  imperfect  exhibition,  and  the  hasty  withdrawal 
of  the  "roll  of  papers  ;"  the  two  statements  of  Mr. 
Pierrepont;  the  shrinking  of  the  "  full  Cabinet 
meeting  "  into  a  "  confidential  interview,"  until  after 
Seward's  death ;  and  the  singularly  equivocal  lan 
guage  that  the  petition  was  ''  before  the  President " 
when  he  signed  the  warrant. 

And,  finally,  when  it  is  considered  that  the  sup 
pression  of  the  paper  was  not  the  overt  act  of  any 
one  man,  but  the  result  of  a  strictly  formal  presenta 
tion  of  the  record  on  the  part  of  the  Judge- Advocate, 
aided,  it  may  be,  by  a  timely  sleight-of-hand  in  writing 
the  order  of  approval,  and  of  a  blind  carelessness  on 
the  part  of  the  President  in  the  examination  of  the 
papers  ;  this  hypothesis  goes  far  to  explain  the  reluct 
ance  of  General  Holt  to  rest  his  defense  on  his  own 
evidence  of  the  confidential  interview,  his  eager 
grasping  after  Cabinet  corroboration,  and  the  absten 
tion  of  both  Judge-Advocate  and  President  from 
taking  official  action  upon  the  charge,  the  one  for 
vindication,  the  other  for  punishment. 

And  so  the  history  of  this  murder  of  a  woman  by 
the  forms  of  military  rule  slowly  unrolls  itself,  to 
disclose,  as  its  appropriate  finis,  the  writer  of  the 


252  MARY   E.    SURRATT. 

death-warrant  struggling  in  the  meshes  of  his  own 
fraud. 

The  draughtsman  of  the  unaddressed  petition  for 
commutation,  after  waiting  eight  years  for  death  to 
clear  the  way,  comes  to  the  help  of  his  old  colleague, 
only  to  be  caught  in  the  same  net. 

The  entangled  twain  call  up  the  sullen  shade  of 
their  departed  master,  and  force  him  to  father  the 
trick  he  fain  would  have  scorned. 

These  three  are  the  men  who,  when  the  summary 
methods  of  martial  law  would  else  have  failed  to 
crush  out  entirely  the  life  of  their  victim,  contrived 
to  attain  their  bloody  end  by  cool  and  deliberate 
chicanery. 

The  other  actors  on  the  scene  may  plead  the  mad 
ness  of  the  time.  For  these  three  no  such  plea  is 
open.  They  superadded  to  the  common  madness  of 
the  time  the  particular  malice  of  the  felon.  Upon 
their  three  heads  should  descend  the  full  weight  of 
criminal  turpitude  involved  in  this  most  unnatural 
execution. 

They  sat  upon  the  thrones  of  power.  They 
dragged  a  woman  from  her  humble  roof  and  thrust 
her  into  a  dungeon.  They  chose  nine  soldiers  to 
try  her  for  the  murder  of  their  Commander-in-Chief. 
They  chained  her  to  the  bar  along  with  seven  men. 
They  baited  her  for  weeks  with  their  Montgomerys 
and  Conovers,  their  Weichmans  and  Lloyds,  the 
spawn  of  their  bureau,  dragooned  by  terror  or  sub 
orned  by  hope.  They  shouted  into  the  ears  of  the 


HER   VINDICATION.  253 

court  appeal  on  appeal  for  her  head.  And,  when 
at  last  five  of  their  chosen  sons  sickened  at  the  task, 
and  shrank  from  shedding  a  woman's  blood,  they 
procured  the  death-sentence  by  a  trick.  They 
forged  the  death-warrant  by  another.  They  turned 
thimble-riggers  under  the  very  shadow  of  the  gal 
lows.  They  cheated  their  own  court.  They  cheated 
their  own  President.  They  cheated  the  very  execu 
tioner.  They  sneaked  a  woman  into  the  arms  of 
death  by  sleight-of-hand.  They  played  their  confi 
dence  game  with  the  King  of  Terrors.  They  man 
aged  to  hide  the  cheat  from  the  country  until  they 
quarreled  with  their  new  Commander-in-Chief. 
Then  "ensued  an  interval  of  ambiguous  mutterings, 
dark  equivocations,  private  accusation,  private  de 
fenses.  From  one  side  :  "  I  never  saw  the  paper." 
From  the  other  :  "  It  was  right  before  his  eyes." 

The  twin  ex- Judge- Advocates,  at  length,  brace 
each  other  up  to  the  sticking-point  and  venture  on 
an  appeal  to  the  public.  The  ex-President,  thus 
driven  at  bay,  fulminates  the  secret  infamy  in  all 
its  foul  extent  to  the  whole  world.  Thereupon, 
Great  Nemesis  finds  her  opportunity,  and  makes 
these  once  high-placed,  invulnerable  woman-slayers 
the  sport  of  her  mighty  hands. 

Every  one,  as  if  coerced  by  some  magic  power, 
comes  at  last  to  act  as  though  he  were  afraid  of  the 
other,  and,  willing  or  unwilling,  contrives  to  show 
how  profoundly  base  the  others  are. 


254  MARY    E.    SURRATT. 

Stanton  slinks  mysteriously  into  the  shadow  of 
death,  refusing  to  cut  his  co-conspirator  down  from 
the  gibbet  where  the  dreaded  Johnson  has  swung 
him.  Bingham,  standing  like  an  Indian  with  a 
single  female  scalp  bleeding  from  his  girdle,  presses 
his  finger  to  his  lips  until  Stanton  and  Seward  die. 
Speed,  with  the  obnoxious  petition  pressed  again 
and  again  to  his  nostrils,  feebly  yet  persistently 
refuses  to  open  his  mouth. 

Holt  pictures  the  dead  Johnson  exulting  even  in 
Hell  over  the  silence  of  his  old  Attorney-General ; 
blasts  the  character  of  Stanton  by  ascribing  his 
injunction  of  silence  to  a  motive  the  most  diabolic; 
and,  unconscious  seemingly  that  he  does  it,  at  the 
same  time  ruins  the  credit  of  Bingham  by  extolling 
his  "  scrupulous  obedience "  to  such  an  infernal 
command. 

Johnson  unwittingly  proclaims  the  pardon  of  the 
slain  woman  in  his  anxiety  to  show  that  he  signed 
her  death-warrant  through  ignorance,  forced  upon 
him  by  the  ineffable  depravity  of  the  men  in  whom 
he  was  compelled  to  trust. 

This  controversy  over  the  petition  of  clemency 
was  the  only  thing  needed  to  round  out  and  decorate 
the  entire,  complete  and  perfect  iniquity  of  the 
whole  drama.  It  is  immaterial  and  indifferent  to 
history  where  the  truth  lies  between  these  com 
batants  in  so  unsavory  a  strife.  Each  one  tears  off 
the  burning  brand  of  shame,  not  to  extinguish  it, 
but  to  pass  it  on  to  his  colleague.  If  we  credit 


HER   VINDICATION.  255 

Holt,  it  is  difficult  to  conceive  the  malignity  of  soul 
of  Andrew  Johnson,  who  could  invent  so  foul  a 
charge,  the  meanness  of  spirit  of  Edwin  M.  Stanton, 
who,  knowing  its  blackness,  could  forbid  the  pro 
mulgation  of  the  truth,  the  cowardly  silence  of 
John  A.  Bingham,  whose  lips  the  death  of  the 
dreaded  Stanton  alone  could  unclose.  If  we  credit 
Johnson,  then  in  all  the  crowded  catalogue  of 
inquisitors,  persecutors,  cruel  or  pettifogging  prose 
cuting  officers,  devil's  advocates  and  murderous 
Septembrisers,  there  is  not  one  who  would  not 
spurn  with  profane  emphasis  association  with  Holt 
or  Bingham  or  Stanton. 

As  the  choicest  specimen  in  this  shower  of  accu 
sations  and  counter-accusations,  listen  to  the  tender 
hearted  ex- Judge- Advocate  of  1873 — once  the  stony 
head  of  the  death-dealing  Bureau — rebuking  Andrew 
Johnson  for  his  cold-blooded  cruelty !  "  I  would 
have  shuddered  to  propose  the  brief  period  of  two 
days  within  which  the  sentences  should  be  executed, 
for  with  all  the  mountain  of  guilt  weighing  on  the 
heads  of  those  convicted  culprits  I  still  recognized 
them  as  human  beings,  with  souls  to  be  saved  or 
lost,  and  could  not  have  thought  for  a  moment  of 
hurrying  them  into  the  eternal  world,  as  cattle  are 
driven  to  the  slaughter-pen,  without  a  care  for  their 
future." 

Listen  again  to  the  former  expounder  of  the 
"  common  law  of  war  "  before  the  Military  Com 
mission,  as  he  arraigns  the  ex-President  for  his  dis- 


256  MARY   E.    SURRATT. 

regard  of  the  writ  of  habeas  corpus  :  "  The  object 
of  which  was,  and  the  effect  of  which  would  have 
been,  had  it  been  obeyed,  to  delay  the  execution  of 
Mrs.  Surratt  at  least  until  the  questions  of  law 
raised  had  been  decided  by  the  civil  courts  of  the 
District ;  yet  this  writ  was,  by  the  express  order  of 
the  President,  rendered  inoperative.  And  so,  under 
this  Presidential  mandate,  the  execution  proceeded. 
*  *  *  But  for  his  direct  intervention  and  defiant 
action  on  the  writ,  whatever  might  have  been  the 
final  result,  it  is  perfectly  apparent  her  life  would 
not  then  have  been  taken." 

Once  more.  Hear  J.  Holt,  the  Recorder  of  the 
Commission  !  "As  Chief  Magistrate  he  was,  under 
the  Constitution,"  (HEAR  HIM  !)  "  the  depositary  of 
the  nation's  clemency  and  mercy  to  the  condemned, 
and  a  pressing  responsibility  rested  upon  him  as 
such  to  hear  the  victims  of  the  law  before  he  struck 
them  down."  (The  italics  are  his  who  wrote  out  the 
death-warrant.)  "  Did  he  do  this?  On  the  con 
trary,  *  *  he  gave  *  *  a  peremptory  order  to 
admit  nobody  seeking  to  make  an  appeal  in  behalf 
of  the  prisoners,  saying  that  he  would  '  see  no  one 
on  this  business/ 

"He  closed  his  door,  his  ears,  and  his  heart 
against  every  appeal  for  mercy  in  her  behalf,  and 
hurried  this  hapless  woman  almost  unshrived  to  the 
gallows." 

What  a  picture  is  this ! 


HER   VINDICATION.  257 

The  minion  of  Stanton,  the  colleague  of  Bing- 
ham,  the  tutor  of  Weichrnan,  the  terrorizer  of 
Lloyd,  the  procurer  of  the  death-warrant,  weeping 
over  the  empty  grave  in  the  Arsenal,  which,  after 
his  master's  relentless  watch  was  over,  had  at  length 
given  up  its  dead  ! 

Here  we  are  forced  to  stop.  After  such  an  exhi 
bition,  we  can  linger  no  longer  over  this  miserable 
scramble  to  shirk  responsibility.  Its  only  conse 
quence  of  historic  importance,  after  all,  is  the  light 
it  casts  upon  the  memory  of  the  sacrificial  victim. 
Out  of  the  cloud  of  mutual  vituperation,  which 
covers  the  men  who,  among  them,  somehow,  com 
passed  her  slaughter,  her  innocence  rises  clearer  and 
clearer,  like  the  images  of  retribution  from  the  foul 
fumes  of  the  witches'  cauldron. 

Her  vindication  must  be  held  to  be  final,  com 
plete  and  unassailable,  when  John  A.  Bingham  is 
anxious  to  acquaint  the  country  that  he  drafted  a 
petition  to  save  her  life;  when  J.  Holt  pretends  to 
weep  for  her;  when  Andrew  Johnson  is  forced,  by 
the  inexorable  pressure  of  events,  to  confess  that 
when  he  signed  her  death-warrant  he  knew  not  what 
he  did. 

As  we  let  fall  the  curtain  at  the  close  of  this  dark 
and  shameful  tragedy,  let  us  endeavor  to  anticipate 
the  verdict  of  history. 

The  execution  of  Mary  E.  Surratt  is  the  foulest 
blot  on  the  history  of  the  United  States  of  America. 
18 


258  MARY    E.    SURRATT. 

It  was  a  violation  of  the  most  sacred  provisions 
of  that  Constitution,  whose  enforcement  was  the 
vaunted  purpose  of  the  War. 

It  was  a  violation  of  the  fundamental  forms  and 
principles  of  criminal  jurisprudence,  centuries  older 
than  the  Constitution. 

It  was  a  violation  of  that  even-handed  justice, 
which  is  said  to  rule  in  the  armies  of  Heaven  and 
among  the  inhabitants  of  the  earth. 

It  was  a  violation  of  those  chivalrous  impulses 
which  spring  unbidden  to  the  manly  breast  in  the 
presence  of  woman. 

It  was  a  violation  of  the  benign  precepts  of  Jesus, 
which  enjoin  tenderness  to  the  fatherless  and  the 
widow. 

It  was  a  violation  of  the  magnanimity  of  the  brave 
soldier,  which  scorns  to  wound  the  weak,  the  fallen 
and  the  helpless. 

It  was  a  violation  of  even  the  common  instincts 
of  fairness,  which  subsist,  as  a  matter  of  course, 
between  man  and  man. 

It  was  unconstitutional.  It  was  illegal.  It  was 
unjust.  It  was  inhumane.  It  was  unholy.  It  was 
pusillanimous.  It  was  mean.  And  it  was  each 
and  all  of  these  in  the  highest  or  lowest  degree.  It 
resembles  the  acts  of  savages,  and  not  the  deeds  of 
civilized  men. 

The  annals  of  modern  times  will  be  searched  in 
vain  to  furnish  its  parallel.  Execrations  rise  to  our 
lips,  as  we  read,  in  the  pages  of  Macaulay,  of  the 


HER   VINDICATION.  259 

hanging  of  Alice  Lisle,  and  the  burning  of  Elizabeth 
Gaunt.  But  Alice  Lisle  and  Elizabeth  Gaunt  were 
indicted  by  grand  juries,  tried  by  petit  juries,  found 
guilty,  and  sentenced,  in  strict  accordance  with  crimi 
nal  procedure.  The  forms  of  law,  which  the  bigoted 
James,  and  even  the  infamous  Jeffrey,  were  careful 
to  observe,  were  swept  aside  by  Holt  and  Bingham 
and  Stanton,  with  a  sneer. 

We  turn  aside  with  sickening  horror  from  the 
recital  of  the  murderous  orgies  of  the  Terrorists  of 
the  French  Revolution — shedding  the  blood  of  the 
young,  the  tender,  the  beautiful,  the  brave.  But 
the  Terrorists  of  France  could  plead  the  excuse,  that 
they  were  driven  to  madness  by  the  thought,  that 
the  invading  hosts,  encompassing  the  new-born  Re 
public,  were  drawing  nearer  and  nearer,  every  hour, 
with  vengeance  and  counter-revolution  perched  upon 
their  banners ;  and  a  merciful  destiny  granted  them 
the  grace  to  expiate  their  bloody  deeds  on  the  same 
scaffold  as  their  victims. 

But,  in  the  case  of  Mary  E.  Surratt,  not  a  single 
redeeming  feature  relieves 

"  The  deep  damnation  of  her  taking  off'." 

Alas !  Alas  !  Right  in  the  centre  of  the  glory 
which  beams  from  the  triumph  of  the  Union  and 
Emancipation,  there  hangs  a  dark  figure — casting 
an  eclipsing  shadow — ever  widening — ever  deepen 
ing — in  the  eyes  of  all  the  coming  generations  of 
the  just. 


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